author: Justice BENDER

text:
    DWORKIN, CHAMBERS & WILLIAMS, P.C., jointly; and Gregory K. Chambers, individually, Petitioners, v. Susan J. PROVO, Respondent.
    No. 02SC792.
    Supreme Court of Colorado, En Banc.
    Dec. 1, 2003.
    Rehearing Denied Jan. 12, 2004.

      Larry N. Harris, Littleton, Colorado, Attorney for Petitioners.
    Wilcox & Ogden, P.C., Ralph Ogden, Denver, Colorado, Steven U. Mullens, P.C., Steven U. Mullens, Colorado Springs, Colorado, Attorneys for Respondent.
    Pinnacol Assurance, Brandee DeFalceo Gal-vin, Denver, Colorado, Attorneys for Amicus Curiae Pinnacol Assurance.
   Justice BENDER

delivered the Opinion of the Court.

INTRODUCTION

In this case, we hold that an attorney does not violate a specific workers' compensation penalty statute by advising an insurer to violate a lawful order, even if the attorney acts with fraud or malice. To reach this holding, we address two related issues: first, whether an attorney fails, neglects, or refuses to obey a lawful order in a workers' compensation setting by advising an insurer not to comply with the order; and second, whether the workers' compensation penalty statute extends to a claim against an attorney for fraudulently or maliciously advising an insurer to violate a lawful order.

Section 8-48-304(1) of the Workers' Compensation Act of Colorado allows fines to be imposed against "[alny employer or insurer, or any officer or agent of either, or any employee, or any other person who ... fails, neglects, or refuses to obey any lawful order...."

Interpreting this statute, the court of appeals held that the insurer's attorneys could not fail, neglect, or refuse to obey an order not directed at them. Provo v. Indus. Claim Appeals Office, 66 P.3d 138, 145 (Colo.App.2002). However, the court of appeals concluded that as "agents" of the insurer, the attorneys could be liable under the statute if they acted with fraud or malice. Id.

We hold that, in a workers' compensation setting, an attorney who lacks the authority to bind an insurer does not violate a lawful order by advising the insurer to violate the order, even if the attorney acts with fraud or malice. We construe the relevant provision of $ 8-48-804(1) as penalizing only those persons with the authority to bind the insurer with respect to actions required by a lawful order and whose actions violate the order. In the absence of evidence to the contrary, an attorney does not bind an insurer in such actions. Thus, an attorney typically is not an "agent"-one with the authority to bind a principal-within the meaning of the statute. The plain language of this statute omits any mention of attorneys acting in an advisory capacity, instead penalizing only those who fail, neglect, or refuse to obey a lawful order. We also hold that the statute by its express terms does not extend to a claim against an attorney who allegedly acts with fraud or malice in advising an insurer to violate a lawful order because the statute does not expressly provide for such a claim.

Thus, we affirm the court of appeals in part and reverse it in part. We affirm the court of appeals' holding that the attorneys did not fail, neglect, or refuse to obey a lawful order under the terms of the statute. However, we reverse the court of appeals holding that the statute may apply to an attorney who acts with fraud or malice. Accordingly, we remand this case to the court of appeals with instructions to return it to the Industrial Claim Appeals Office to dismiss the claim against the attorneys.

I. FACTS AND PROCEEDINGS BELOW

Claimant Susan J. Provo was seriously injured on the job at Atmel Corporation. At-mel's workers' compensation insurer was Industrial Indemnity Company. Attorney Gregory K. Chambers and his firm Dworkin, Chambers and Williams, P.C. (collectively, the "attorneys") initially represented the insurer regarding Provo's workers' compensation claim.

As a preliminary matter, we note that our review of the record does not reveal any evidence that the attorneys had the authority to bind the insurer with respect to the payment of Provo's benefits. The attorneys did not act on behalf of the insurer, which ultimately decided whether to pay for Provo's treatment. At all times, the attorneys acted in an advisory capacity to the insurer regarding Provo's benefits.

At the center of this dispute is a 1998 order by an administrative law judge (ALJ) requiring the insurer to pay for Provo's chiropractic treatment. The order required the insurer to cover "all [of Provo's] reasonable and necessary medical expenses" for a particular chiropractor, then specifically found that "/o/ecasional chiropractic treatment ... is especially reasonable and appropriate ... for a claimant with such severe injuries and permanent consequences" (emphasis added). The order, which was not appealed, left no doubt that the insurer was obligated to pay for Provo's chiropractic treatment.

Chambers advised the insurer that the 1998 order did not require it to cover Provo's chiropractic treatment. He also informed the insurer that if it denied coverage, Provo would be compelled to return to court, which could force a final settlement of her claim. A letter from Chambers to the insurance ad-Jjuster reveals his extreme misinterpretation of the order as well as his stonewalling tacties:

[The ALJ] leaves open the issue as to whether any of the [chiropractic] treatment ... would be considered reasonable and necessary. Given the fact that [the insurer's doctor] has already indicated it would not be reasonable and necessary, we have a basis for denying any treatment in the future from [the chiropractor].
In denying treatment, this would obviously result in [Provo] filing another Application for Hearing for payment of this medical treatment. At that time, I would recommend that we add the issue of permanent partial disability so that we can close this claim out. Hopefully, at that time, opposing counsel will be more interested in settling the claim.

In the letter, Chambers appeared to be aware that his interpretation of the order was strained, since he thought that denying coverage would "obviously" force Provo to return to court. Chambers' letter exposes his strategy of engaging in hardball legal maneuvering with a worker who suffered from serious and permanent injuries.

Although the insurance adjuster interpreted the order as obligating the insurer to cover chiropractic treatment, the insurer followed Chambers' advice and refused to pay Provo's chiropractic bills for a period of about six months.

Provo then moved for sanctions against the insurer under a different section of the Workers' Compensation Act, § 8-48-401(2)(a), 8 C.R.S. (2003), which allows a claimant to seek penalties against an insurer who willfully denies payment of benefits. Under this provision, the Division of Workers' Compensation receives eight percent of the amount of benefits wrongfully denied. After a hearing, an ALJ found that the 1998 order clearly required the insured to cover Provo's chiropractic treatment and that the insurer's refusal to pay was "wrongful, deliberate, and intentional," and "willful, unreasonable, and legally unsupportable." Accordingly, the ALJ awarded to the Division the statutory eight percent penalty, amounting to less than $100.

In her brief to this Court, Provo explains that she did not pursue a claim against the insurer under § 8-48-304(1), 3 C.R.S. (2003) (the "penalty statute") because the controlling interpretation of this statute at the time of her penalty hearing against the insurer required her instead to seek penalties exclusively under the specific provision of § 8-43-401(2)(a). Sears v. Penrose Hospital, 942 P.2d 1345 (Colo.App.1997). Thus, Provo pursued a penalty statute claim against the attorneys rather than the insurer. Arguing that the attorneys were subject to the penalty statute because they were "agents" of the insurer, Provo sought the statutory rate of $500 per day against the attorneys for violating the 1998 order. The attorneys moved to dismiss the claim, asserting that they could not be held liable for violating an order that was directed only at the insurer. The ALJ denied the attorneys' motion to dismiss.

In a subsequent proceeding, an ALJ reconsidered the attorneys' motion to dismiss Provo's penalty statute claim. Reasoning that the attorneys could not violate an order that was not directed at them, the ALJ granted the attorneys' motion to dismiss Provo's penalty statute claim. On appeal, the Industrial Claim Appeals Office (the "Panel") affirmed the dismissal.

Provo appealed to the court of appeals, which held that the attorneys did not fail, neglect, or refuse to comply with the order but that they could be liable under the penalty statute if they acted with fraud or malice. Provo, 66 P.3d at 145.

As a preliminary matter, the court of appeals concluded that the attorneys were subject to the penalty statute as "agent[s]" or "any other person[s]" under the language of the statute. Id. at 144.

Interpreting the clause of the penalty statute that permits sanctions against those who fail, neglect, or refuse to obey any lawful order, the court reasoned that an attorney could be liable only by violating "an order that specifically directs the attorney to act." Because the 1998 order to pay chiropractic benefits was directed only to the insurer, the court of appeals held that the attorneys had not violated the order or the penalty statute. Id. at 145.

The court of appeals then held that the penalty statute could apply to the attorneys if they acted with fraud or malice and remanded the case to the Panel for further proceedings to determine whether the attorneys acted with fraud or malice. Id.

The attorneys now appeal to us, arguing that they are not liable to Provo under the penalty statute.

II. ANALYSIS

An Attorney without the Authority to Bind an Insurer Does Not Fail, Neglect, or Refuse to Obey a Lawful Order by Advising an Insurer to Violate the Order

The attorneys argue that because the 1998 order was not directed at them, they did not violate the order. The attorneys also contend that unlike failing, neglecting, or refusing to obey an order, advising an insurer not to comply with a lawful order does not violate the penalty statute. Provo responds that as "agent[(s]" or "any other person[s]" under the penalty statute, the attorneys are expressly subject to the statute. Provo asserts that by advising the insurer not to comply with the 1998 order, the attorneys themselves failed, neglected, or refused to obey the order. We agree with the attorneys and hold that when the attorneys advised the insurer not to comply with the 1998 order, they did not violate the order or the penalty statute.

The General Assembly intended the Workers' Compensation Act to provide for the quick and efficient delivery of benefits to injured claimants at a reasonable cost to employers. The Act was meant to avoid the "necessity of any litigation" through the parties' "mutual renunciation of common law rights and defenses." § 840-102, 3 CRS. (2003). By participating in the workers' compensation system, parties waive their common law rights and defenses. § 8-40-10 6 102; § 8-41-104, 3 C.R.S. (2003).

We review the court of appeals' interpretation of the penalty statute de novo. Gorman v. Tucker, 961 P.2d 1126, 1128 (Colo.1998). Our primary task in construing a statute is to give effect to the General Assembly's intent. People v. Luther, 58 P.3d 1013, 1015 (Colo.2002). If the language of a statute is clear, we apply the plain meaning of the statute. Vaughan v. McMinn, 945 P.2d 404, 408 (Colo.1997). However, where the language of a statute is subject to conflicting interpretations, we turn to the legislative history of the statute to determine the General Assembly's intent. State v. Nieto, 993 P.2d 493, 501 (Colo.2000).

The provision of the penalty statute relevant to this appeal authorizes fines of up to $500 per day to be imposed on a broad class of persons who fail, neglect, or refuse to obey a lawful order. The provision reads as follows:

Any employer or insurer, or any officer or agent of either, or any employee, or any other person who ... fails, neglects, or refuses to obey any lawful order made by the director or panel ... shall also be punished by a fine of not more than five hundred dollars per day for each such offense....

§ 8-43-304(1). In our view, the penalty statute appears to be subject to conflicting interpretations and can reasonably be construed in a manner that is consistent with both parties' arguments. On one hand, to the extent that an attorney can bind an insurer, an attorney could be considered an "agent" or "any other person" who may fail, neglect, or refuse to obey an order. On the other hand, an attorney lacking the authority to bind an insurer with respect to actions required by a lawful order does not fail, neglect, or refuse to obey the order by advising an insurer to violate it. Because no legislative history exists for the penalty statute, we turn to the derivation of its language. Aside from some minor word changes, the language we interpret is the same as when the statute was originally enacted in 1919.

Reviewing the language of the penalty statute, we note that the statute covers a broad class of persons who fail, neglect, or refuse to obey a lawful order. This class of persons includes "[ainy employer or insurer, or any officer or agent of either, or any employee, or any other person." However, the class is modified by the phrase "who ... fails, neglects, or refuses to obey any lawful order." Thus, only those persons who are capable of violating a lawful order, and whose actions constitute a failure, neglect, or refusal to obey the order, are subject to the statute.

By definition, an agent is one with authority to "act on behalf of ... and bind" a principal. Black's Law Dictionary 62 (7th ed.1999)(defining "agency"). See also Restatement (Second) of Agency § 1 (1958)("Agency is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act."){(emphasis added). Absent evidence of some other arrangement, the attorney's role in benefits decisions is to interpret administrative orders regarding benefits and to advise insurers whether to pay. In contrast, the insurer ultimately makes and acts on the decision of whether to pay benefits. Although an attorney's advice may influence an insurer's decision to pay or deny benefits, in the typical case an attorney who advises an insurer regarding benefits decisions does not bind or act on behalf of the insurer. Thus, an attorney lacking the ability to bind an insurer is not included within the term "agent" as used in the penalty statute.

Supporting this construction of the word "agent" in the penalty statute is the subsequent phrase that penalizes an agent who "fails, neglects, or refuses to obey any lawful order." Failure, neglect, and refusal are forms of noncompliance that can be engaged in only by those with the ability to bind or act on behalf of an insurer. "Fail" and "ne-gleet" both mean to leave undone, while "refuse" means to withhold compliance. These definitions support our interpretation that an attorney who merely acts in an advisory capacity does not fail, neglect, or refuse to obey a lawful order. Unlike those with the authority to bind an insurer, an attorney who advises an insurer to violate an order to pay benefits does not leave undone or withhold compliance regarding the order.

We note that the penalty statute does not include "attorneys" among those persons who are capable of violating the statute. Other labor statutes adopted around the time that the original penalty statute was enacted do create liability for both "attorneys" and "agents." While labor statutes adopted around the same time as the penalty statute distinguish between "attorneys" and "agents," the penalty statute itself includes only the term "agent." In addition, two years after enacting the original penalty statute, the General Assembly adopted a labor statute that expressly created liability for advising and encouraging noncompliance with the labor statutes.

As these labor statutes show, by adding "attorneys" to the class of persons covered by the penalty statute or by penalizing persons for "advising" and "encouraging" the violation of an order, the General Assembly could have created lHability for attorneys acting in an advisory capacity. The General Assembly's omission of these terms from the penalty statute indicates its intent to penalize only those with the authority to bind the insurer with respect to the actions required by a lawful order who fail, neglect, or refuse to obey such an order.

Thus, we conclude that the penalty statute does not extend to the conduct of an attorney who merely acts in an advisory capacity in a workers' compensation setting. Because the statute only penalizes those persons with authority to bind an insurer with respect to the actions required by a lawful order and whose actions violate such an order, we hold that an attorney does not fail, neglect, or refuse to obey a lawful order by advising an insurer to violate the order.

The Penalty Statute Does Not Include a Claim against an Attorney who Fraudulently or Maliciously Advises an Insurer to Violate an Order to Pay Benefits

Next, we address the court of appeals' holding that the penalty statute authorizes the imposition of fines against an attorney who acts with fraud or malice. Relying on the common law fraud-malice theory, the court of appeals construed the penalty statute to include a cause of action against an attorney who acts fraudulently or maliciously and remanded this case to the Panel for a hearing on whether the attorneys acted fraudulently or maliciously.

The attorneys argue that the penalty statute does not include a claim against an attorney who fraudulently or maliciously advises an insurer to violate a lawful order in a workers' compensation setting. Provo responds that an attorney is liable to an opposing claimant under the penalty statute when the attorney's advice is fraudulent or malicious.

The penalty statute by its express terms says nothing about attorneys who act fraudulently or maliciously with respect to a lawful workers' compensation order. Under our rules of statutory construction, a statute in derogation of the common law such as the penalty statute "may not be enlarged by construction, nor its application extended beyond its specific terms." Robinson v. Kerr, 144 Colo. 48, 52, 355 P.2d 117, 119-20 (1960). Extending the penalty statute to a class of persons and a category of conduct not specifically covered by the statute violates this rule of construction, especially because insurers and claimants who participate in the Workers' Compensation Act waive their common law rights and remedies. See § 8-41-104. Accordingly, we hold that Provo cannot recover under the penalty statute, even if she could prove the attorneys acted with fraud or malice. >

Application

Although we do not condone Chambers' actions, his conduct does not form the basis of a claim under this specific penalty statute in the workers' compensation setting. The record reveals no evidence that Chambers had the authority to bind the insurer regarding the payment of benefits. Thus, Chambers was not an "agent" under the language of the statute, and he did not fail, neglect, or refuse to obey the 1998 order to pay benefits. Instead, Chambers advised the insurer, however inappropriately, not to pay, which does not warrant penalties under the statute.

Even if Provo could prove that Chambers acted with fraud or malice, the penalty statute does not apply because the statute by its express terms does not extend to acts of an attorney who fraudulently or maliciously advises an insurer to violate a lawful order.

Conclusion

For the reasons stated above, we affirm the court of appeals in part and reverse it in part. We remand the case to the court of appeals with instructions to return it to the Panel to dismiss Provo's claim against the attorneys.

      . Clearly, if a lawful order is directed at an attorney, the attorney's violation of the order could result in penalties under the statute.

      . Unless otherwise noted, the statutory provisions cited in this opinion were in effect in identical form at all times relevant to this suit.

      . In the usual civil litigation setting, a court has the authority to impose contempt sanctions for failure to comply with an order. See CRCP. 107 (2003). However, an ALJ possesses no such authority. § 8-43-207(1)(p), 3 C.R.S. (2003). Accordingly, Provo was forced to pursue statutory remedies.

      . § 8-43-401(2)(a) provides in part:
      After all appeals have been exhausted or in cases where there have been no appeals, all insurers and self-insured employers shall pay benefits within thirty days of when any benefits are due. If any insurer or self-insured employer willfully delays payment of medical benefits for more than thirty days or willfully stops payments such insurer or self-insured employer shall pay a penalty to the division of eight percent of the amount of wrongfully withheld benefits.

      . In Sears, the court of appeals considered whether a claimant may recover under the penalty statute even though penalties are elsewhere specifically provided under the Workers' Compensation Act. In that case, the court of appeals held that the limiting phrase in the penalty statute, "for which no penalty has been specifically provided," required it to apply a more specific provision instead of the penalty statute. In Holliday v. Indus. Claim Appeals Office, 997 P.2d 1212 (Colo.App.1999), the court of appeals extended the Sears court's reasoning to hold that the limiting phrase in the penalty statute applies to failing, neglecting, or refusing to obey an order, the same category of conduct at issue in this case. We later overruled Sears. In Holliday v. Bestop, Inc., 23 P.3d 700 (Colo.2001), we held that because the limiting phrase "for which no penalty has been specifically provided" appears before the disjunctive "or"" in the penalty statute, it does not modify the subsequent clause regarding failing, neglecting, or refusing to obey a lawful order. We note that if this Court's decision in Holliday had controlled at the time of Provo's motion for sanctions against the insurer, she could have recovered up to the statutory maximum of $500 per day from the insurer for the period during which it denied payment for her chiropractic treatment.

      . We granted certiorari on the following issue:
      Whether a party in a workers' compensation case can pursue a claim for penalties under the Workers' Compensation Act of Colorado against the attorney of the opposing party for allegedly causing a violation of an order by the opposing party, where the underlying order was directed only at the opposing party, and where the attorney was not subject to the order.

      . The section reads in full:
      8-40-102. Legislative declaration. (1) It is the intent of the general assembly that the ''Workers' Compensation Act of Colorado" be interpreted so as to assure the quick and efficient delivery of disability and medical benefits to injured workers at a reasonable cost to employers, without the necessity of any litigation, recognizing that the workers' compensation system in Colorado is based on a mutual renunciation of common law rights and defenses by employers and employees alike.

      . The Act requires parties to release "rights to any method, form, or amount of compensation or determination thereof or to any cause of action, action at law, suit in equity, or statutory or common-law right, remedy or proceeding." § 8-41-104, 3 C.R.S. (2003). By cataloguing an exhaustive list of common law remedies, the General Assembly appears to have intended the parties' waiver of common law rights and defenses to be comprehensive. Thus, claimants and insurers alike are limited to statuiory remedies.

      . In its entirety, this subsection of the penalty statute reads:
      843-304. Violations-Penalty-offset for benefits obtained through fraud. (1) Any employer or insurer, or any officer or agent of either, or any employee, or any other person who violates any provision of articles 40 to 47 of this title, or does any act prohibited thereby, or fails or refuses to perform any duty lawfully enjoined within the time prescribed by the director or panel, for which no penalty has been specifically provided, or fails, neglects, or refuses to obey any lawful order made by the director or panel or any judgment or decree made by any court as provided by said articles shall be subject to such order being reduced to judgment by a court of competent jurisdiction and shall also be punished by a fine of not more than five hundred dollars per day for each such offense, seventy-five percent payable to the aggrieved party and twenty-five percent to the subsequent injury fund created in section 8-46-101.

      . The penalty statute was adopted by the General Assembly in 1919. Although the amount that a violator may be fined has changed-the original statute imposed a maximum penalty of $100 per day-the relevant language has remained the same. The original provision penalizes "any employer or insurer, or any officer or agent of either, or any employe [sic], or any other person ... [who] shall fail, neglect or refuse to obey any lawful order...." 1919 Colo. Sess. Laws 747. Although the 1919 session laws repealed and replaced Colorado's original 1915 workers' compensation system, a section of the 1915 laws could be construed as a predecessor to the penalty statute. The section allowed a court to compel obedience by contempt proceedings "[In the case of failure or refusal of any person to comply with the order of the commission." 1915 Colo. Sess. Laws 575.

      . In addition to having the authority to bind the insurer to the actions required by the lawful order, an officer, agent, employee, or any other person must act in violation of the order-Le., fail, neglect, or refuse to obey the order-to be liable under the statute.

      . Although neither Provo nor the court of appeals analyzed the "any other person" class in detail, we are not persuaded that an attorney falls into this class. First, this reasoning disregards the limiting clause "who ... fails, neglects, or refuses to obey any lawful order." We conclude that only those with authority to bind the insurer with respect to the actions required by a lawful order can fail, neglect, or refuse to obey such an order. Second, the argument that the "any other person" language includes any of the insurer's advisors, whether or not they have the authority t0 bind the insurer, would create liability not intended by the General Assembly. At oral argument, Provo conceded that the statute should not be read so broadly as to create liability for all of an insurer's advisors, such as a doctor who recommends against specific treatments required by an administrative order.

      . "Fail" is defined as "to leave undone." Webster's Ninth New Collegiate Dictionary 445 (1989). Similarly, "neglect" connotes "to leave undone or unattended to esp. through carelessness." Id. at 791. Finally, "refuse" signifies "to withhold acceptance, compliance, or permission." Id. at 991.

      . 1911 Colo. Sess. Laws 486 ("agents or attorneys"); id. at 487 ("[aluy person or persons, company, corporation, society, association or organization of any kind doing business in this State, as well as his, their, or its agent, attorneys, servants or associates added).

      . 1921 Colo. Sess. Laws 1230-31 (penalizing "any and all officers, agents, and representatives [for] aiding, abetting, advising, encouraging, participating, inciting or acquiescing in such violation [of the labor statutes] ...." (emphasis added)).

      . Under the common law, an attorney is generally not liable to third parties for advice rendered to a client. See Mehaffy, Rider, Windholz & Wilson v. Cent. Bank Denver, 892 P.2d 230, 239 (Colo.1995)("A party must prove the existence of an attorney-client relationship between the complaining party and the lawyer in order to prevail on a claim of legal malpractice."). See also Joan Teshima, Afforney's Liability, to One Other than Immediate Client, for Negligence in Connection with Legal Duties, 61 A.L.R.4th 615 (1988). However, a narrow exception to the rule against malpractice claims by non-clienis exists where an attorney acts with fraud or malice. Mehaffy, 892 P.2d at 235 (stating in dicta that "[glenerally, an attorney is not liable to a non-client absent a finding of fraud or malicions conduct by the attorney").

      . Although the penalty statute does not reach an attorney's conduct under these circumstances, we do not address the question of whether such conduct could support a claim that Chambers violated the Colorado Rules of Professional Conduct. See, eg., CRCP. 1.1 (2003) (requiring professional competence); 8.4 (prohibiting conduct that is prejudicial to the administration of justice or that violates accepied standards of legal ethics).


source: Caselaw Access Project

author: Justice HOBBS

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellant v. Bruce PLATT, Defendant-Appellee.
    No. 03SA217.
    Supreme Court of Colorado, En Banc.
    Jan. 12, 2004.

      A. William Ritter, Jr., District Attorney, Robert J. Whitley, Chief Appellate Deputy District Attorney, Denver, Colorado, Attorneys for Plaintiff-Appellant.
    David S. Kaplan, State Public Defender, Holly Lucas, Deputy State Public Defender, Denver, Colorado, Attorneys for Defendant, Appellee.
   Justice HOBBS

delivered the Opinion of the Court.

In this interlocutory appeal, pursuant to section 16-12-102(2), 6 C.R.S. (2002), and C.A.R. 4.1, the prosecution challenges an order of the Denver County District Court granting defendant Bruce Platt's motion to suppress his oral and written statements to the police. With regard to all three statements, the trial court ruled that, as a result of Platt's drug usage, he did not knowingly, intelligently, and voluntarily waive his Miranda rights. We reverse the trial court's suppression order with regard to all of his statements to the police.

The trial court failed to evaluate the totality of the circumstances surrounding Platt's Miranda waiver; it took only one factor into account, intoxication. The record does not support the trial court's finding and conclusion that Platt did not knowingly, intelligent ly, and voluntarily waive his Miranda rights. Rather, the record demonstrates, under the totality of the cireumstances, that Platt voluntarily spoke to the police and made a knowing and intelligent waiver of his rights.

I.

The prosecution charged Platt with Sexual Assault pursuant to section 18-8-402(1)(b), 6 C.R.S. (2002), and Failure to Register as a Sex Offender pursuant to section 18-3-412.5(1)(a), 6 C.R.S. (2002). The charges stemmed from an incident occurring at approximately 3:00 a.m. on December 6, 2002, when Platt allegedly fondled his sleeping housemate, first caressing the outside of her underwear and then digitally penetrating her vagina.

Platt made three separate statements to the police concerning the incident. First, at approximately 4:00 a.m. on December 6, within an hour of the incident, one of the officers who interviewed the alleged victim contacted Platt via telephone. During their conversation, Platt admitted that he had sexually assaulted his housemate. He also stated that it was his fourth sexual assault and he was concerned about going to prison for the rest of his life. Platt then agreed to meet the officer in person. Upon meeting, the officer arrested Platt and advised him of his Miranda rights.

After arriving with Platt at the police station, approximately 4:30 a.m., the officer advised Platt of his rights a second time. Platt stated that he understood his rights and was not intoxicated. He signed a written advisement form listing his Miranda rights. After discussing the events of the assault with the investigating officer orally, a conversation not recorded, Platt made a written statement that consists of two parts: (1) a two-page narrative that Platt wrote, and (2) a five-page question and answer dialogue that the police officer wrote.

A day later, at approximately 9:00 a.m. on December 7, Platt made a third statement, recorded on audiotape, to a different police officer. Contrary to the trial court's conclusion that this statement was not preceded by a Miranda advisement, the audiotape clearly reveals that the police advised Platt of his rights before he waived them both orally and in writing:

Q: Your rights are as follows: You have the right to remain silent, okay. Anything you say can be used as evidence against you in court. You have a right to talk to a lawyer before questioning and have him present during questioning.
A: Uh-huh.
Q: If you cannot afford a lawyer, one will be appointed for you without cost to you before questioning.
Do you understand each of these rights I've read to you?
A: Yes.
Q: I signed there saying I did read you your rights. There's your answer that you did understand your rights; you said yes.
Here's the spot where you need to sign saying that the rights were read to you. If you want to read them again, you can; they're right there above your signature.
Okay, now knowing your rights and knowing what you are doing, do you now wish to voluntarily talk with me?
A: Yes.
Q: Okay, go ahead and sign there.

Platt then signed the written advisement form and proceeded to give details about the sexual assault yet again, essentially repeating what he had written the day before and supplying additional detail.

When giving the Miranda advisements before the written and the audio-taped statements, the police officers asked Platt whether he was intoxicated. Each time he said he was not, although he told the officer who took the audio-taped interview that he had been smoking marijuana several hours before the sexual assault.

At the suppression hearing, Platt testified that he was under the influence of drugs at the time of the incident, as well as when he made the telephone and the written statements. He said that he was suffering from withdrawal during the audio-taped statement. According to his testimony, during the afternoon and evening before the sexual assault, he had consumed three lines each of cocaine and methamphetamine and smoked three "bowls" of marijuana, two of which were laced with opium.

Assuming the truth of Platt's drug use testimony, which the trial court found to be credible, he ceased ingesting the drugs at midnight and made the telephone statement four hours later and the written statement five to seven hours after the last drug use. He made the audio-taped statement at least thirty-three hours after ingesting the drugs.

The trial court ordered the suppression of all three statements, ruling in toto:

The statements made were not made knowingly, intelligently, and voluntarily. The Court finds the defendant's statements regarding his drug use credible. Prior to making the statements in question, the defendant was under the influence of marijuana, opium, methamphetamine, and cocaine. Having reviewed the Exhibit 2, the Court finds the defendant's statements to have been incoherent, rambling and demonstrative of his lack of understanding as a result of the drug usage. The officer knew or should have known from the defendant's rambling statements and demeanor that the defendant was under the influence of drugs and, as a result, unable to understand his Miranda rights. Thus, the Court finds that the drugs impaired the defendant's ability to such a degree that the Court cannot say the statements were made knowingly, intelligently, and voluntarily. The defendant's statement contained on the audiotape is also suppressed for the same reasons and additionally, because no Miranda advisement was given.

We reverse the suppression order with regard to all of the statements.

IL.

The trial court failed to evaluate the totality of the cireumstances surrounding Platt's Miranda waiver; it took only one factor into account, intoxication. The record does not support the trial court's finding and conclusion that Platt did not knowingly, intelligently, and voluntarily waive his Miranda rights. Rather, the record demonstrates, under the totality of the cireumstances, that Platt voluntarily spoke to the police and made a knowing and intelligent waiver of his rights.

A.

Standard of Review

A trial court engages in both fact-finding and law application when it rules on a motion to suppress. People v. Kaiser, 32 P.3d 480, 483 (Colo.2001). When a trial court determines whether a defendant has validly waived the Miranda rights, the court engages in both factfinding and law application. See People v. Matheny, 46 P.3d 453, 461 (Colo.2002). Although we defer to the trial court's findings of fact that are supported by competent evidence in the record, id. at 462, whether the trial court applied the correct legal standard to the facts established by the record is a mixed question of fact and law we review de novo. A trial court may not reach legal conclusions that are not supported by the record. People v. Minjarez, 81 P.3d 348, 355 (Colo.2003).

Accordingly, if competent evidence supports the trial court's findings of fact, we give deference to them; conversely, we set aside findings of fact that are clearly erroneous or unsupported by the record. Kaiser, 32 P.3d at 483. We review the trial court's legal conclusions de novo. People v. Miller, 75 P.3d 1108, 1111-12 (Colo.2003).

B.

Waiver of Miranda Rights

At the outset of custodial interrogation, the police must issue a Miranda advisement to inform a suspect of his or her constitutional rights. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); see also Minjarez, 81 P.3d at 352. Suspects can waive their rights upon receiving a proper Miranda advisement; however, in order to be valid, the waiver must be voluntary, knowing, and intelligent. Miranda, 384 U.S. at 444, 86 S.Ct. 1602. A Miranda waiver is considered voluntary unless "coercive governmental conduct-whether physical or psychological-played a significant role in inducing the defendant to make the confession or statement." People v. May, 859 P.2d 879, 883 (Colo.1993). A waiver is knowing and intelligent when made with full awareness of the nature of the right being abandoned and the consequences of the decision to abandon it. People v. Hopkins, 774 P.2d 849, 851 (Colo.1989).

The prosecution must prove the validity of a defendant's waiver by a preponderance of the evidence. Colorado v. Connelly, 479 U.S. 157, 168, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986); Kaiser, 32 P.3d at 484. Courts evaluate a defendant's waiver of Miranda rights based on the totality of the circumstances surrounding the custodial interrogation. Kaiser, 32 P.3d at 484. A court is not limited in the number of factors it may consider, and no single factor is determinative. Minjarez, 81 P.3d at 353.

In assessing the validity of a Miranda waiver, factors a court may consider include, but are not limited to, the following: the time interval between the initial Miranda advisement and any subsequent interrogation; whether and to what extent the interrogating officer reminded the defendant of his or her rights prior to the interrogation by asking if the defendant recalled his or her rights, understood them, or wanted an attorney; the clarity and form of the defendant's acknowledgement and waiver, if any; the background and experience of the defendant in connection with the criminal justice system; the defendant's age, experience, education, background, and intelligence; and whether the defendant has any language barrier in understanding the advisement. Kaiser, 32 P.3d at 484.

Intoxication, when raised, is also one of the factors the trial court may consider when assessing the validity of a Miranda waiver. People v. Quintana, 996 P.2d 146, 149 (Colo.App.1999) (disapproved on other grounds by People v. Harlan, 8 P.3d 448, 474 (Colo.2000)). Intoxication will render a suspect's waiver involuntary when government conduct causes the intoxication. See Colorado v. Spring, 479 U.S. 564, 574, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987) May, 859 P.2d at 882-83. When self-induced intoxication is involved, courts examine whether the suspect was so intoxicated that he or she could not have made a knowing and intelligent waiver. See Spring, 479 U.S. at 574, 107 S.Ct. 851; May, 859 P.2d at 882-83; People v. Fordyce, 200 Colo. 153, 156, 612 P.2d 1131, 1134 (1980).

The fact that self-induced intoxication diminishes a defendant's mental faculties does not necessarily invalidate his or her waiver as not being knowing and intelligent. Intoxication will not invalidate an otherwise valid Miranda waiver if the suspect was capable of understanding the nature of his or her rights and the ramifications of waiving them. People v. Cardenas, 25 P.3d 1258, 1265 (Colo.App.2000).

In considering the intoxication factor, the competence inquiry we have developed in cases involving mental incompetence or language difficulty is pertinent: whether the defendant seemed oriented to his or her surroundings and situation; whether the defendant's answers were responsive and appeared to be the product of a rational thought process; whether the defendant was able to appreciate the seriousness of his or her predicament, including the possibility of being incarcerated; whether the defendant had the foresight to attempt to deceive the police in hopes of avoiding prosecution; whether the defendant expressed remorse for his or her actions; and whether the defendant expressly stated that he or she understood their rights. Kaiser, 32 P.3d at 487-89; People v. Al-Yousif, 49 P.3d 1165, 1172 (Colo.2002); People v. Jordan, 891 P.2d 1010, 1015-16 (Colo.1995); Quintana, 996 P.2d at 149.

C.

Validity of the Miranda Waiver

The trial court erred in suppressing Platt's statements. The telephone statement is admissible; it was both voluntary and noncustodial. With regard to the written and audio-taped statements, the record does not support the trial court's legal conclusion that Platt's waiver was not knowing and intelligent. The trial court improperly suppressed both of these statements.

1.

The Telephone Statement

Police need not give the Miranda advisory unless a suspect is subject to custodial interrogation. Miranda, 384 U.S. at 444, 86 S.Ct. 1602. Custodial interrogation is "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. When the interrogating officer is not in the physical presence of a suspect, the officer does not exert immediate control over the suspect's actions. People v. J.C., 844 P.2d 1185, 1190 (Colo.1993). Accordingly, a telephone call does not constitute custodial interrogation. Id. Statements and confessions received as a result of a non-custodial interrogation are admissible, if they are voluntary. Id. at 1189. Contrary to the trial court's conclusion, a statement is not involuntary for reason of intoxication unless government conduct caused the intoxication. See Spring, 479 U.S. at 574, 107 S.Ct. 851; May, 859 P.2d at 882-83.

Here, Platt made the first statement via telephone; no police coercion or government-caused intoxication occurred. This statement was non-custodial, voluntary, and admissible. The trial court erred in suppressing it.

2.

Written and Audio-Taped Statements

Platt made the written and audio-taped statements while in police custody following his arrest. Because the police questioning was reasonably likely to elicit an incriminating response, Platt made each of these statements during custodial interrogation. See People v. Taylor, 41 P.3d 681, 690 (Colo.2002). Neither statement is admissible unless preceded by a proper Miranda advisement and a valid waiver of defendant's rights. When considering recorded statements-whether documentary, audio-taped, or video-taped-the trial and appellate courts are in a similar review position. Al-Yousif, 49 P.3d at 1171.

Here, the police gave Platt both oral and written Miranda advisements shortly before he made the written statement and the audio-taped statement. Each time he stated that he understood his rights and wished to waive them. The trial court made no finding of police coercion, and the record contains no evidence of police coercion. Therefore, Platt made both statements voluntarily. The question is whether Platt's waiver was knowing and intelligent.

In assessing the validity of Platt's Miranda waiver, the court erred by failing to take into account the totality of the cireum-stances. Although the trial court found Platt's testimony about his drug use eredi-ble-and we defer to that credibility determination-the trial court addressed only the intoxication factor. But, the written and audio-taped statements do not support the trial court's conclusion that Platt's Miranda waivers were unknowing and unintelligent in light of Platt's intoxication. To the contrary, the record demonstrates, under a totality of the cireumstances, that Platt's Miranda waivers with regard to the written and audio-taped statements were both knowing and intelligent.

We now proceed to apply the totality of the cireumstances test to Platt's Miranda waivers.

With regard to the intoxication factor, the trial court's order states that both the written and audio-taped statements were "incoherent, rambling, and demonstrative of his lack of understanding as a result of the drug usage." We are in the same position as the trial court to review these recorded statements. See Al-Yousif, 49 P.3d at 1171. These statements do not support the trial court's finding and conclusion that Platt was so intoxicated he did not understand his rights and the consequences of waiving them.

With regard to the written statement, the record contains un-contradieted evidence that the police officer advised Platt orally and in writing of his Miranda rights just prior to this statement; he answered that he understood those rights; he said he was not intoxicated at the time of the oral and signed written advisements; and the officer testified at the suppression hearing that Platt did not appear to be intoxicated at the time he received the Miranda advisory. Platt made the written statement five to seven hours after the last drug use. Although his two-part written statement contains misspellings by both Platt and the police officer, Platt lucidly explains in detail how he committed the sexual assault and why:

Written narrative statement in Platt's handwriting (excerpt):
I'm deprest and I've know it for some time. For along time I don't know if I'm gay or strat. I don't know who I am. I'm so angree in side it hurts. I don't know how to help my-self, I never, wanted and/or intended to hurt her or any one els. I wasn't looking for or wanted to have a victim. I just wanted to be normal like every body els. After 8 relationships 1 of them being a repeat, being hell. I didn't know how to feel tord women, relationships and my-self. As sorry as I am to say this; I wanted to know if I felt the same way tord women.
I touched [the victim] with my hand and penitrated her with my finger.
Written question and answer statement in officer's handwriting (excerpt):
Q. Take away the fact that it was [the victim] & you don't get along-why did you to touch the girl on the couch.
A. I reached out to touch her because I didn't know
Q. Didn't know what
A. When I saw her underware, it didn't cause a reaction. When I was touching & penatrating her I was asking my self questions. Could a woman ever love me & can I make a woman happy. This had nothing to do with [the victim], it was about women.
Q. How long were you touching [the victim]
A. I don't know maybe 2 minutes
Q. What hand did you use
A. Both when I was touching her
Q. What hand did you use to penatrate her
A. Right
Q. How many fingers did you use
A. One
Q. Which one
A. Index. (Held up index finger)
Q: Is there anything you want to add to this statement
A: I want help, I need treatment. I don't want drugs I want to be normal. I know the repercusions. I don't want to go to jail but I know I need help. In the past 6 months my drug use has incrossed when Im high, I don't hurt inside. I don't have any physical pain. Momentorely I am able to forget.

Platt signed all seven pages of the written statement. This statement is coherent, rational, and lucid. It contains a straightforward narrative of the sexual assault, Platt's explanation for making the assault, and his apparent appeal to the police for drug treatment instead of the evident repercussion of possibly going to prison as a repeat sex offender.

The written statement itself demonstrates that Platt comprehended the civreumstances of his custody and interrogation, was responsive to the questioning, willingly cooperated in giving detailed answers, had a good recollection of the events surrounding the assault, and was not so intoxicated at the time of the oral and written Miranda advisements as to be incapable of understanding his rights and the consequences of waiving them.

Likewise, with regard to the audio-taped statement, the record demonstrates that the police advised Platt orally and in writing of his Miranda rights just prior to this statement, he answered that he understood those rights, and he said he was not intoxicated at the time of the oral and signed written advisements. Platt made the audio-taped statement at least thirty-three hours after the last drug use. During this statement, Platt pauses after virtually every question to consider the answer; then he responds with details that reaffirm his written statement and adds additional recollection of the events leading up to the assault:

Audio-Taped Statement (excerpt):

Q: Okay, so you get there Thursday night?
A: Uh-huh.
Q: Where were you coming from?
A: My friend's house.
Q: When you get there, who's there or who's not?
A: As far as I know, everybody is there.
Q: What do you do when you show up, since everyone's sleeping? Do you wake them up, or you want to talk to them? What do you do?
A: I let myself in-I have a key to the house-I let myself in. Lights were off, I didn't know [the victim] was sleeping on the couch. I turn the light on, I startled her, she woke up. And we both kind of apologized because, you know, when you wake her up, she'll jump at you, you know, due to her past for her being in an abused life and all that.

Platt proceeds to give on the audiotape virtually the same rendition of the sexual assault as he did in the written statement, including the fact that the assault occurred after the victim went back to sleep on the couch, his reasons for the assault, and his desire for drug treatment.

Despite his suppression hearing testimony that he was suffering from drug withdrawal during the audio-taped statement, Platt's answers during the audio-taped interview again reveal a cooperative suspect who makes detailed, coherent, and lueid responses that demonstrate his recall of the events and his motivation for cooperation, to avoid the harsh consequences of being a repeat sex offender.

Contrary to the trial court's conclusion that Platt was so intoxicated that he could not make a knowing and intelligent Miranda waiver, Platt was alert and perceptive enough in making the waivers and giving the written and audio-taped statements that he consciously lied about his drug usage in order to avoid additional charges:

Suppression Hearing Testimony-Direct Examination of Platt by his Attorney (excerpt):
Q: And you heard [the] Corporal [ ] indicate that he asked you whether you were taking any drugs.
A: Yes.
Q: Do you recall that?
A: Yes.
Q: And he said that you told him that you had not taken any drugs, is that right?
A: Yes.
Q: Why did you lie ... ?
A: Instantaneous response.
Q: Okay. You just heard [the] Detective [ ] testify he also asked you whether you consumed any drugs, do you recall that?
A: Yes.
Q: And besides telling him that you smoked some marijuana with [your friend], did you tell him that you had done any other drugs?
A: No.
Q: Why did you lie to him?
A: Mitigate my damage. I didn't want to get any more charges.

In summary, the written statement and audio-taped statements do not support the trial court's finding and conclusion that Platt did not comprehend his rights, when advised, and the consequences of waiving them.

The trial court considered only the intoxication factor. A totality of the cireumstances analysis of the record in this case reveals a 28-year-old adult who possesses a high school graduation certificate; suffers from no apparent language barrier; has prior experience with the criminal justice system; has been convicted previously of sexual assault; knows that repeat sexual assault can have severe punishment consequences; receives oral and written Miranda advisements just before making both the written and audio-taped statements; acknowledges his Miranda rights orally and in writing each time; states that he is not intoxicated; does not appear to the officers to be intoxicated; delivers all three of his statements (including the telephone statement) in a responsive, coherent, detailed, and cooperative manner without any evidence of police coercion; and expresses remorse for his actions, apparently hoping to avoid the consequences of being a repeat sex offender and a drug offender.

We conclude that the record does not support the trial court's suppression order. Under a totality of the cireumstances, Platt understood the Miranda advisements, understood the consequences of waiving his rights, and waived his rights. The waivers are valid.

IIL

Conclusion

Accordingly, we reverse the trial court's suppression order with regard to all three statements and remand this case for further proceedings consistent with this opinion.


author: Judge NIETO.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Sergey G. NOVITSKIY, Defendant-Appellant.
    No. 01CA1269.
    Colorado Court of Appeals, Div. V.
    April 24, 2003.
    Rehearing Denied June 19, 2003.
    Certiorari Denied Jan. 12, 2004.

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

Judge NIETO.

Defendant, Sergey G. Novitskiy, appeals the judgment of conviction entered upon jury verdicts finding him guilty of two counts of forgery, § 18-5-102(1)(c), C.R.S.2002, class five felonies; unlawful use of a financial transaction device, § 18-5-702, C.R.S.2002, a class two misdemeanor; and theft, § 18-4-401, C.R.S$.2002, a class three misdemeanor. We reverse and remand for a new trial.

Defendant, who was working as a clerk in a department store, assisted a customer in making a purchase using a credit card. A short time later that day, the customer's credit card was used at another shopping center to make a purchase in one store and in an attempt to make a purchase in another store. Defendant was identified as the person using the customer's credit card in both stores, although the identification was disputed.

I.

Defendant contends that the trial court committed reversible error by admitting evidence that he had previously been accused of conduct similar to that alleged here. We agree.

Over defendant's objection that the testimony constituted evidence of other uncharged criminal conduct, a police officer was allowed to testify that during an interview, defendant had stated "that he was accused of doing something similar like this before," but, "there wasn't any evidence to pursue charges." The trial court admitted this evidence, finding that defendant had in fact made the statement, and "there is some relevance to it." The court did not analyze the evidence using the four-part test announced in People v. Spoto, 795 P.2d 1314 (Colo.1990), and more fully explained in People v. Rath, 44 P.3d 1033 (Colo.2002).

The admissibility of evidence of uncharged criminal conduct is governed by CRE 404(b). People v. Rath, supra.

Evidence of other erimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

CRE 404(b).

Prior to admitting evidence under CRE 404(b), the trial court must conclude by a preponderance of the evidence that the uncharged conduct occurred and that the defendant was the perpetrator. People v. Garner, 806 P.2d 366 (Colo.1991).

Here, the only evidence relating to uncharged criminal conduct was the officer's testimony relating defendant's statement. However, defendant did not admit that he had engaged in such conduct; he only stated that he was accused of it and there was not any evidence to pursue charges. Thus, there was no evidence that defendant had engaged in prior uncharged criminal conduct. Therefore, the threshold requirement for CRE 404(b) evidence was not met, and the trial court erred in admitting the officer's testimony.

Failure to conduct the Spoto and Garner analysis of CRE 404(b) evidence is not reversible error if the record supports the trial court's admission of the evidence. People v. Martinez, 36 P.3d 154 (Colo.App.2001). However, here defendant's statement was the only evidence in the record relating to the uncharged conduct, and that statement alone is not sufficient to justify admission of the evidence.

The prosecution argues that this error was harmless. We are not persuaded.

The proper inquiry in determining a harmless error question is not whether there was sufficient evidence to support the verdict without the improperly admitted evidence, but, rather, whether the error substantially influenced the verdict or affected the fairness of the trial proceedings. If a reviewing court can say with fair assurance that, in light of the entire record of the trial, the error did not substantially influence the verdict or impair the fairness of the trial, the error may properly be deemed harmless.

People v. Gaffney, 769 P.2d 1081, 1088 (Colo.1989) (citations omitted).

The prosecution argues that the evidence of defendant's guilt was so overwhelming that the erroneous admission of defendant's statement did not substantially influence the verdict or impair the fairness of the proceedings. In evaluating this argument, we must look at the harm CRE 404(b) was designed to prevent.

"[Elvidence of similar acts has inhering in it damning innuendo likely to beget prejudice in the minds of jurors. ..." Stull v. People, 140 Colo. 278, 284, 344 P.2d 455, 458 (1959); see People v. Garner, supra (reasons set forth in Stull for excluding other crime evidence remain applicable after adoption of CRE 404(b)). Other crimes or bad acts evidence exposes a defendant to the risk of being found guilty based on bad character rather than evidence relating to the charged offense. People v. Garner, supra.

Here, the suggestion that defendant may have avoided prosecution for a prior similar crime could have caused the jury to disregard his defense of misidentification. The guilty verdict depended in large part on the identification evidence, and therefore, we cannot say with fair assurance that the error did not substantially influence the verdict or affect the fairness of the trial. Therefore, we reject the prosecution's harmless error argument.

Accordingly, we conclude that it was reversible error to admit defendant's statement about prior accusations of misconduct absent compliance with the requirements of Spoto and Garner.

IL

Because the issue may arise in a subsequent trial, we address defendant's contention that the offense of unauthorized use of a financial transaction device, § 18-5-702, requires proof that the defendant "obtained" cash, credit, property, or services. We agree.

Our purpose in construing a statute is to ascertain and give effect to the legislative intent expressed therein. We must read and consider the statute as a whole and interpret it to give harmonious effect to all its parts. State v. Nieto, 993 P.2d 493 (Colo.2000). We look first to the language of the statute, giving words their commonly accepted meaning and avoiding a strained or forced interpretation. People v. Trusty, 53 P.3d 668 (Colo.App.2001).

Here, defendant allegedly used a credit card without authorization in two stores. In one store he received goods, but in the other store the transaction was interrupted, and he did not receive any goods. The value of the goods involved in both stores was combined, as permitted by § 18-5-702(4), C.R.S.2002, to reach the value nee-essary to constitute a class two misdemeanor.

As relevant here, § 18-5-702(1), C.R.S. 2002, defines the offense as the unauthorized use of a financial transaction device "for the purpose of obtaining" certain things of value. Section 18-5-702(8), C.R.S.2002, defines the class of the offense based upon the value of the things "obtained." Likewise, § 18-5-702(4) defines value as the total value of the things "obtained."

"Obtain" means "to gain or attain possession or disposal of [something] usually by some planned action or method." Webster's Third New International Dictionary 1559 (1986).

The interpretation urged by defendant gives effect to all the terms in the statute without giving them an unusual or strained meaning. Using a financial transaction device "for the purpose of obtaining" things of value can be read to mean either that things of value were in fact obtained or that defendant attempted to obtain them. However, the term "obtained," as used in § 18-5-702(8) and (4), cannot be read to include an attempt to obtain things of value without adding language to the statute.

The prosecution, relying on § 18-5-702(1), interprets the statute as defining a crime that is complete once the perpetrator makes unauthorized use of a financial transaction device for the purpose of obtaining things of value. Thus, the prosecution views the crime as complete even if the perpetrator does not complete the transaction and does not receive a thing of value. This is a logical reading of § 18-5-702(1) in isolation, but it is inconsistent with the classification of offenses in § 18-5-702(8) based on the value of the things obtained and with the definition of "value" in § 18-5-702(4). Because we must read the statute as a whole and give harmonious effect to all its parts, we reject that interpretation.

If we were to adopt the prosecution's interpretation of § 18-5-702(1), it would define a erime without a penalty because § 18-5-702(8) provides penalties only if things of value are "obtained." See § 18-1-104, C.R.S.2002 ("crime" means conduct for which a fine or imprisonment may be imposed). "A criminal statute must include a penalty for committing the acts proscribed, and a criminal prohibition without a penalty is unenforceable." Olinyk v. People, 642 P.2d 490 (Colo.1982).

Further, a defendant who engages in conduct constituting an attempt to make unauthorized use of a financial transaction device can be charged with the inchoate crime of criminal attempt, § 18-2-101, C.R.S.2002. Therefore, the prosecution is not without a remedy if a person engages in conduct similar to that alleged here.

Accordingly, we construe § 18-5-702 to require that a defendant in fact obtain possession or use of cash, credit, property, or services through the unauthorized use of a financial transaction device.

IIL

Defendant also contends that the penalty for forgery under § 18-5102 violates equal protection principles and that his conviction under both §§ 18-5-102 and 18-5-702 violates double jeopardy principles. Because these constitutional issues were not raised in the trial court, we decline to consider them. See People v. Cagle, 751 P.2d 614 (Colo.1988)(axiomatic that appellate court will not consider constitutional issues raised for first time on appeal).

The judgment is reversed, and the case is remanded for a new trial.

Judge TAUBMAN and Judge CASEBOLT concur.


author: Judge DAILEY.

text:
    Michael B. McMANUS, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF COLORADO, Oil Tools Limited, and American Home Assurance Company, Respondents.
    No. 02CA0966.
    Colorado Court of Appeals, Div. IV.
    April 24, 2003.
    As Modified on Denial of Rehearing July 31, 2003.
    Certiorari Denied Jan. 12, 2004.
    Killian and Guthro, P.C., J. Keith Killian, Joanna C. Jensen, James R. Angel, Grand Junction, Colorado, for Petitioner.
    No Appearance for Respondent Industrial Claim Appeals Office.
    Senter Goldfarb & Rice, L.L.C., W. Berkeley Mann, Jr., Denver, Colorado, for Respondents Oil Tools Limited and American Home Assurance Company.
   Opinion by

Judge DAILEY.

In this workers' compensation proceeding, Michael B. McManus (claimant) appeals the order of the Industrial Claim Appeals Office (Panel) denying his request for two types of penalties against respondents, Oil Tools Limited (employer) and American Home Assurance Company (insurer). We affirm in part, set aside a portion of the order, and remand for further proceedings.

Claimant, a Colorado resident, suffered an industrial injury while working for employer in Algeria. The Administrative Law Judge (ALJ) found that the injury was compensable under the Colorado Workers' Compensation Act (Act) and that insurer provided employer with workers' compensation coverage.

Respondents were ordered to provide claimant with benefits due under the Act, and employer was ordered to pay a penalty for its failure timely to admit or deny liability for the injury. However, the ALJ denied claimant's request for a penalty for respondents' alleged failure to insure properly for workers' compensation. The Panel affirmed the denial of penalties for failure to insure, but set aside, as premature, the award of penalties for failure timely to admit or deny liability because disability benefits had not yet been awarded.

L.

Claimant contends that the Panel erred in placing upon him the burden of proving employer's failure to file a notice of certain documentation about its insurance with the Division of Workers' Compensation as required by $ 8-44-101(1)(b), C.R.S.2002, in order to recover penalties for failure to insure under § 8-148-408(1), C.R.98.2002. However, we need not resolve claimant's burden of proof issue because employer's failure to comply with insurance-related provisions of the Act, other than the requirement in $ 8-44-101(1) to "secure" compensation, would not trigger the fifty percent penalty provision of § 8-48-408(1) in any event.

Penalties should be imposed for failure to comply with the insurance provisions of § 8-44-101(1) only if appropriate insurance is not in effect for the benefits due the injured employee. See Anderson v. Dutch Maid Bakeries, 106 Colo. 201, 204, 102 P.2d 740, 741 (1940). Thus, in United States Fidelity & Guaranty, Inc. v. Kourlis, 868 P.2d 1158, 1161-62 (Colo.App.1994)(USF & @), where the employer did not carry Colorado workers' compensation insurance, but secured compensation for the claimant through the Wyoming workers' compensation system, the claimant was not entitled to penalties for the employer's failure to comply with the insurance provisions of the Colorado Act.

Claimant argues that USF & G is distinguishable or should not be followed because in that case coverage was available in another state. However, we agree with USF & G's holding that in § 8-44-101(1), "compliance with the insurance requirements of [the Act]" requires only that the employer "secure," or obtain, the necessary coverage, and we conclude that employer's act of obtaining compensation constituted compliance with the Act. The significant factor is that coverage existed that protected the employees in USF & G and here.

Our conclusion is consistent with the legislative intent of the Act, which is to assure the quick and efficient delivery of disability and medical benefits to injured workers at a reasonable cost to employers and without the necessity of litigation. Section 8-40-102(1), C.R.8.2002.

Claimant also argues that the notice required under $ 8-44-101(1)(b) helps a claimant to determine whether an employer has insurance in effect on the date of the injury, thereby furthering this intent of the Act. While we agree such notice may be helpful, we nevertheless conclude that the failure to give it does not justify a penalty. Cf. Giddings v. Indus. Claim Appeals Office, 39 P.3d 1211, 1214 (Colo.App.2001)(purpose of penalty is to deter misconduct, and penalties imposed for the disobedience of an ALJ's order further underlying policy of Act by allowing full compensation).

In summary, we conclude that because employer secured compensation for claimant, employer's failure to give the notice described in § 8-44-101(1)(b) is not grounds for the imposition of penalties under § 8-43-408(1). Thus, the Panel did not err in upholding the denial of penalties. Given our conclusion, we need not consider the sufficiency of claimant's evidence offered in support of this claim for penalties.

IL.

Claimant next contends that the Panel erred in vacating, as premature, the ALJ's award of penalties for employer's alleged failure to admit or deny liability for the injury. We agree.

Pursuant to § 8-48-208(1)(a), C.R.S. 2002, an employer or, if the employer is insured, the insurer, must provide notice admitting or denying liability within twenty days of the date it becomes aware of the employee's alleged disabling injury. Pacesetter Corp. v. Collett, 33 P.3d 1230, 1232 (Colo.App.2001). If such notice is not timely filed, the employer or insurer "may become liable to the claimant, if the claimant is sue-cessful on the claim for compensation, for up to one day's compensation for each day's failure to so notify." Section 8-48-208(2)(a), C.R.S.2002.

Generally, a claim is successful when the employer's liability for disability benefits is established. See Eachus v. Cooper, 738 P.2d 383, 385 (Colo. for temporary disability benefits sufficient to invoke penalty). However, there need not be a formal adjudication or award of disability benefits, and it may be sufficient that the claimant continued to receive wages during periods of disability. See Smith v. Myron Stratton Home, 676 P.2d 1196, 1201 (Colo.1984).

Here, while no disability benefits have been paid or awarded to claimant, the ALJ determined that claimant was disabled by his injuries for more than three days and that his injuries were compensable under the Act. Thus, the ALJ determined, in effect, that employer was at least liable for temporary disability benefits See § 8-42-105(1), C.R.S.2002; PDM Molding, Inc. v. Stanberg, 898 P.2d 542, 545-46 (Colo.1995).

Employer's reliance on Racon Constr. Co. v. Indus. Claim Appeals Office, 775 P.2d 61, 62 (Colo.App.1989), for a contrary proposition is misplaced. In Racon, the division held that the claimant was not entitled to a penalty. However, there it was determined that the claimant was not eligible for disability benefits. See Racon Const. Co. v. Indus. Claim Appeals Office, supra, 775 P.2d at 62-63.

The division in Racon also linked the right to a penalty to a determination of the type and rate of disability benefits. However, the record here reflects that claimant was paid his wages throughout his period of disability. Under the holding of Smith v. Myron Stratton Home, supra, claimant was successful on his claim for compensation and thus eligible, without more, for an award of a penalty for employer's failure to admit or deny liability for the injury. To the extent that Racon is irreconcilable with our conclusion, we decline to follow it.

Therefore, the Panel erred in setting aside the ALJ's award of penalties as premature. The Panel should, instead, have addressed the parties' arguments relating to the propriety and amount of penalties imposed under § 8-48-208(1)(a).

The order of the Panel is affirmed as to the denial of penalties for failure to insure. The order of the Panel is set aside as to the penalties for failure to admit or deny Hability, and the case is remanded for reinstatement of the ALJ's award and further consideration of that award by the Panel, consistent with the views expressed in this opinion.

Judge ROTHENBERG and Judge KAPELKE concur.


author: Judge PLANK.

text:
    In re the MARRIAGE OF Susan A. MALWITZ, Appellee, and Reginald D. Parr, Appellant, and Concerning Pueblo County Child Support Enforcement Unit, Appellee.
    No. 02CA0056.
    Colorado Court of Appeals, Div. A.
    May 8, 2003.
    Certiorari Granted Jan. 12, 2004.

      Colorado Legal Services, Lynn Magalska, Pueblo, Colorado, for Appellee Susan A. Mal-wite.
    Greg Quimby, Colorado Springs, Colorado, for Appellant.
    GF. Sandstrom, Pueblo County Attorney, Patricia J. Rosales-Chavez, Assistant Pueblo County Attorney, Pueblo, Colorado, for Ap-pellee Pueblo County Child Support Enforcement Unit.

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

   Opinion by

Judge PLANK.

Reginald D. Parr (father) appeals from a judgment establishing his child support obligation. He argues that the trial court abused its discretion in determining that it could exercise extended personal jurisdiction over him pursuant to § 14-5-201(5), C.R.S. 2002, of the Uniform Interstate Family Support Act (UIFSA), when the court did not make a finding that he had "minimal contacts" with this state. We agree and therefore reverse the judgment.

The child was conceived in Texas while father was married at common law to Susan A. Malwitz (mother). Mother, while pregnant, moved to Colorado after father allegedly threatened her with acts of domestic violence.

In this Colorado dissolution proceeding, father was served personally in Texas and appeared only to contest the exercise of personal jurisdiction. After a hearing, the trial court concluded that it had personal jurisdiction over father under § 14-5-201(5) because his acts of violence forced mother from Texas.

Initially, we note that there is no question that Colorado has jurisdiction to enter the decree of dissolution based solely upon mother's domicile in this state. See Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945); Koscove v. Koscove, 113 Colo. 317, 156 P.2d 696 (1945). Child support was ordered based upon the finding that Colorado had personal jurisdiction over father under the UIFSA,.

Section 14-5-201(5) provides that:
In a proceeding to establish, enforce, or modify a support order or to determine parentage, a tribunal of this state may exercise personal jurisdiction over a nonresident individual ... if; ... The child resides in this state as a result of the acts or directives of the individual....

This section of UIFSA was adopted in 1995 to extend long-arm jurisdiction as far as constitutionally permissible, but without establishing "child-state jurisdiction" under which the duty of support and the location of the child, alone, would provide the jurisdictional nexus for a support order. In re Marriage of Zinke, 967 P.2d 210 (Colo.App. 1998).

An assertion of personal jurisdiction over a foreign defendant must satisfy the requirements of both the Colorado long-arm statute and due process of law. D & D Fuller CATV Constr., Inc. v. Pace, 780 P.2d 520 (Colo.1989).

The "minimum contacts" requirement is the litmus test of federal constitutional due process guarantees and requires consideration of the quality and nature of the defendant's activity in the forum state. In re Marriage of Ness, 759 P.2d 844 (Colo.App.1988)(failure to include child support payments according to agreement did not constitute a tortious act under long-arm statute). Minimum contacts may be established with the forum state when, by some act, tortious or otherwise, a defendant purposely avails himself or herself of the privilege of conducting activities within the forum state, thereby invoking the benefits and protections of its law. Goldenhersh v. Febrey, 711 P.2d 717 (Colo.App.1985). Each case must be examined to determine whether there are sufficient minimum contacts to justify the exercise of personal jurisdiction over the defendant. D & D Fuller CATV Constr., Inc. v. Pace, supra.

Such minimum contacts were found in Franklin v. Commonwealth, 27 Va.App. 136, 497 S.E.2d 881 (1998). There, the husband ordered the wife and their children from their home in Africa after several physical altercations. The wife and the children returned to the United States and established a permanent home in Virginia, where the parties previously had lived. The Virginia court determined that the UIFSA section equivalent to § 14-5-201(5) granted it personal jurisdiction over the husband, even though he continued to reside in Africa, based upon his act of ordering the wife and their children from their home.

Additionally, the court in Pranklin rejected as overly restrictive the husband's argument that personal jurisdiction could be exercised only if he had directed the wife to move specifically to Virginia. It concluded that the husband's acts, together with his requests for affirmative relief from the Virginia court, satisfied the minimum contacts required by Kulko v. Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 182 (1978).

However, Franklin is distinguishable from the facts of this case because, there, both parties were domiciled in Virginia before they relocated to Africa. Furthermore, the minimum contacts test was satisfied there by the husband's acts that resulted in the children's residence in Virginia combined with his requests for affirmative relief from the court.

Here, the trial court found that father perpetrated domestic violence against mother based upon mother's uncontroverted testimony. The trial court further found that father was aware that most of mother's family ties were in Colorado and that it was foreseeable that Colorado would be a likely place for her to go with the minor child to escape domestic violence.

However, these findings were not sufficient to establish the minimum contacts required under Kulko to comply with due process guarantees. The Supreme Court in Kulko held that the husband's acquiescence in his daughter's desire to live with her mother in another state and visiting the daughter after the move was not enough to confer jurisdiction in the other state. Foreseeability alone has never been a sufficient benchmark for personal jurisdiction under the Due Process Clause. Fleet Leasing, Inc. v. District Court, 649 P.2d 1074 (Colo.1982).

Even if father's actions in Texas were tor-tious, they occurred before mother's move. Father's actions in Texas could not have been expressly aimed at mother in Colorado such that he reasonably could have anticipated being subject to litigation in court here. See Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984); Kulko v. Superior Court, supra.

It was mother's burden to establish a prima facie showing of threshold jurisdiction. See Fleet Leasing, Inc. v. District Court, supra. Because she failed to do so, the support action should have been dismissed.

Thus, we conclude that the trial court erred in exercising extended personal jurisdiction over father.

We also conclude that this case is distinguishable from In re the Parental Responsibilities of H.Z.G., 77 P.3d 848 (Colo.App. No. 02CA0227, May 8, 2008). There, a division of this court held that the trial court properly exercised personal jurisdiction over a father pursuant to Colorado's long-arm statute that provides that a person submits to the jurisdiction of the courts of this state concerning any cause of action arising from "[t]he transaction of any business within this state." Section 18-1-124(1)(a), C.R.8.2002.

In HZG, supra, the trial court found that father had engaged in the transaction of business here and that the purposeful availment requirements had been met. The trial court relied on father's sending mother the letter for the purpose of assisting her in applying for public assistance benefits for the child. A division of this court affirmed, concluding that father transacted business in Colorado by sending the letter to help mother obtain public assistance in Colorado on behalf of the child, for whose support he is in part responsible.

Here, in contrast, mother did not bring her petition under the long-arm statute that provides for personal jurisdiction upon a nonresident based on the transaction of any business within the state. Nor did the mother in H.Z.G., supra, allege a tortious act or assert jurisdiction under § 14-5-201(5) as in this case. We conclude, here, that the trial court's findings were not sufficient to establish that father had the minimum contacts required under Kulko to comply with due process.

Finally, we need not construe § 14-5-201(5) because of our determination that minimum contacts required for jurisdiction were not present.

The judgment is reversed.

TAUBMAN and KIRSHBAUM , JJ., concur.

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


author: Judge WEBB.

text:
    Charlene WOLFORD, n/k/a Charlene Pribble, Plaintiff-Appellant, v. PINNACOL ASSURANCE, Defendant-Appellee.
    No. 01CA2415.
    Colorado Court of Appeals, Div. IIL.
    May 22, 2003.
    Certiorari Granted Jan. 12, 2004.

      Wilcox & Ogden, P.C., Ralph Ogden, Denver, Colorado, for Plaintiff-Appellant.
    Vaughan & Demuro, David R. Demuro, Michael J. Steiner, Denver, Colorado, for Defendant-Appellee.
   Opinion by

Judge WEBB.

Plaintiff, Charlene Wolford, appeals the summary judgment granted in favor of defendant, Pinnacol Assurance, upholding the forfeiture of permanent partial disability (PPD) benefits previously awarded to her for industrial injuries. She challenges the forfeiture on statutory construction grounds, as a violation of double jeopardy principles, as an excessive fine, and as untimely. We affirm.

Plaintiff sustained physical and emotional industrial injuries when she was assaulted at work. She collected temporary total disability (TTD) benefits of $16,698.63, and was awarded both PPD benefits of $81,251.63 and future medical benefits for psychiatric treatment. See Support, Inc. v. Indus. Claim Appeals Office, (Colo.App. No. 96CA0213, July 25, 1996)(not published pursuant to C.A.R. 35(f))(affirming the PPD award).

Plaintiff was employed during portions of the time she received the TTD benefits. As a result, she was charged with willfully making a false statement or representation material to a claim for recovery under the Workers' Compensation Act, § 8-40-101, et seq., C.R.S$.2002(Act), a felony in violation of § 8-43-402, C.R.S.2002 (forfeiture statute). Upon entry of a plea of guilty, the trial court sentenced her to probation for six years and required that she pay restitution, which included the TTD benefits she received while working. The People did not raise, and the court did not address, forfeiture of her PPD benefits.

Plaintiff's employer and its insurer, Pinna-col, then filed an amended final admission of liability in the Division of Workers' Compensation asserting that plaintiffs right to any type of compensation terminated as a result of her conviction. Plaintiff contested the admission, but requested a hearing to determine only whether she was barred from receiving future medical benefits. The administrative law judge, the Industrial Claims Appeals Office, and eventually a division of this court concluded that plaintiff did not forfeit her medical benefits because those benefits were not "compensation" within the meaning of the forfeiture statute. Support, Inc. v. Indus. Claim Appeals Office, 968 P.2d 174 (Colo.App.1998)(Support II).

When Pinnacol failed to pay the PPD benefits, plaintiff filed this action in district court requesting judgment in the amount of $81,251.63, a judicial declaration that the forfeiture statute violates her right to be free from both double jeopardy and the imposition of excessive fines, and attorney fees. The trial court granted Pinnacol's motion for summary judgment, concluding that plaintiff forfeited her right to PPD benefits and that the forfeiture did not constitute double jeopardy or an excessive fine.

We review a trial court's decision to grant summary judgment de novo using established standards. Summary judgment is appropriate only if the pleadings and supporting documents. demonstrate no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The moving party has the burden to establish that no genuine issue of material fact exists, and any doubt should be resolved against the moving party. See Aspen Wilderness Workshop, Inc. v. Colo. Water Conservation Bd., 901 P.2d 1251 (Colo.1995).

Each of plaintiff's arguments presents a question of first impression in Colorado.

I.

Plaintiff first contends the forfeiture statute must be narrowly construed as applying only to benefits tainted by the false representation. Thus, because she fraudulently obtained only the TTD benefits and was otherwise entitled to the PPD benefits, she argues that the PPD benefits are not subject to forfeiture. We disagree.

The forfeiture statute, § 8-48-402, C.R.S. 2002, provides:

If, for the purpose of obtaining any order, benefit, award, compensation, or payment under the provisions of articles 40 to 47 of this title, either for self-gain or for the benefit of any other person, anyone willfully makes a false statement or representation material to the claim, such person commits a class 5 felony and shall be punished as provided in section 18-1.3-401 [formerly 18-1-105], C.R.S., and shall forfeit all right to compensation under said articles upon conviction of such offense.

(Emphasis added.) See Colo. Sess. Laws 1990, ch. 62, § 8-48-402 at 518 (substantially identical version in effect until October 1, 2002).

Because forfeitures are disfavored as a matter of public policy, forfeiture statutes must be strictly construed. However, courts remain bound to give consistent and sensible effect to all parts of the statute. People v. One 1988 Mazda 323, 857 P.2d 569 (Colo. App.1993).

Here, we discern no ambiguity. The word "any," which modifies the phrase "order, benefit, award, compensation, or payment under the [Act]," clearly means "without limitation or restriction." See Nat'l Farmers Union Prop. & Cas. Co. v. Estate of Mosher, 22 P.3d 581 (Colo. is inclusive). Likewise, the word "all," which modifies the phrase "right to compensation," is an unambiguous term, and it permits no exception or exclusion beyond those expressly specified. See City of Grand Junction v. Ute Water Conservancy Dist, 900 P.2d 81 (Colo.1995).

Thus, we hold that plaintiff's act of fraudulently obtaining "any" type of compensation (TTD benefits) resulted in a forfeiture of "all" compensation under the Act, including her PPD benefits. See Rustic Lodge v. Escobar, 729 So.2d 1014, 1015 (Fila.Dist.Ct.App.1999)(statutory provision that "[aln employee shall not be entitled to compensation or benefits" mandates that a claimant forfeit all compensation or benefits and does not limit forfeiture to those benefits obtained by unlawful conduct).

We are not persuaded otherwise by plaintiff's reliance on cases decided under the forfeiture provisions in the public nuisance statute, § 16-13-3083, C.R.S.2002. This statute expressly requires that the forfeiture be directly tied to the public nuisance. Section 8-483-402 has no comparable requirement.

Accordingly, we conclude that the forfeiture statute applies to plaintiff's PPD benefits.

IL.

Plaintiff next contends that even if the forfeiture statute applies to her PPD benefits, it creates a criminal forfeiture, which was not addressed at her sentencing and therefore cannot be invoked against her afterward. To do so, she argues, would violate her rights under the double jeopardy clauses. Again, we disagree.

The double jeopardy clauses of the United States and Colorado Constitutions prohibit the state from: (1) bringing a separate prosecution for the same offense after acquittal; (2) imposing a second prosecution for the same offense after conviction; and (3) imposing multiple punishments for the same crime. Deutschendorf v. People, 920 P.2d 58 (Colo.1996).

To show the state has imposed multiple punishments for the same crime, a party must establish that: (1) the state has subjected the party to separate proceedings; (2) the conduct precipitating the separate proceedings was a single offense; and (8) the penalties in each of the proceedings are considered punishment for double jeopardy purposes. People v. Valdes, 68 P.3d 484 (Colo. App.2002); People v. Coolidge, 953 P.2d 949 (Colo.App.1997).

In determining whether a particular sanction subjects a person to double jeopardy, we apply a two-part test, first considering the authorizing statute to determine whether the General Assembly intended a eriminal or civil sanction. People v. Howell, 64 P.3d 894 (Colo. of costs in a erim-inal matter is a civil sanction because it renders a civil judgment in favor of the state or the state agency that incurred the cost); see In re Cardwell, 50 P.3d 897 (Colo.2002)(lawyer regulation proceedings do not impose eriminal punishment for purposes of the Double Jeopardy Clause, and therefore suspension of attorney after criminal conviction does not constitute a subsequent criminal punishment for double jeopardy purposes).

Second, we consider whether even if the General Assembly intended to provide a civil sanction, the sanction violates double jeopardy when it is primarily punitive. People v. Howell, supra. We conclude that the General Assembly intended the forfeiture provision in § 8-48-402 to be a eriminal sanction, and therefore we need not address the second prong.

A.

The terms of the statute establish two components of a single criminal sentence. First, a person who makes a false statement is punished according to § 18-1.3-401, C.R.S. 2002, for committing a class five felony. Second, the person forfeits his or her right to compensation. Cf. People v. Mayes, 981 P.2d 1106 (Colo.App.1999)(terms of the statute established two parts of a single sentence: (1) a term of incarceration; and (2) a mandatory parole term).

Accordingly, we conclude the forfeiture of benefits under § 8-48-402 is a criminal sanction constituting part of an offender's sentence. Nevertheless, we are unpersuaded the sanction violates double jeopardy.

B.

As relevant here, the prohibition against double jeopardy guards against multiple punishments for the same offense. However, belated imposition of a mandatory portion of a criminal sentence does not violate double jeopardy concerns. Compare People v. Moriarity, 8 P.3d 566 (Colo. App.2000)(gubsequent addition of mandatory parole does not violate double jeopardy because mandatory parole is a required part of defendant's sentence and thus is not a second punishment for the same offense); People v. Xiong, 10 P.3d 719 (Colo.App. 2000)(same); and People v. Mayes, supra (same); with People v. McQuarrie, 66 P.3d 181 (Colo.App.2002)(subsequent assessment of drug offender surcharge violates doubles jeopardy because, unlike mandatory parole and certain unwaivable costs, the surcharge is not mandatory in all cases); and People v. Shepard, 989 P.2d 183 (Colo.App.1999)(increasing the amount of restitution after defendant began serving his sentence violated double jeopardy).

The forfeiture statute does not contemplate any separate proceeding to determine either the fact or the extent of forfeiture. Indeed, the statute does not provide for any discretion concerning the forfeiture of "all right to compensation."

Thus, when she was convicted of violating § 8-43-402, plaintiff automatically forfeited her right to PPD benefits as one component of a single criminal sentence. She was not subjected to multiple punishments in violation of the double jeopardy clause. See, eg., People v. Morigrity, supra; see also Smith v. Mass. Registry of Motor Vehicles, 948 F.Supp. 101 (D.Mass.1996)(automatic suspension of defendant's driver's license after his criminal conviction did not violate double jeopardy because defendant was subjected to only one proceeding and suspension of his license was automatic upon conviction); Martin v. Commonwealth 672 A.2d 397 (Pa.Commw.Ct.1996)(automatic suspension of driver's license after eriminal conviction does not violate double jeopardy even if conviction and suspension occur at different times).

Accordingly, we conclude the forfeiture of benefits under $ 8-48-402 does not violate double jeopardy.

IIL

Plaintiff next contends that even if the forfeiture is a civil remedy, forfeiture is barred by the one-year statute of limitations in § 13-80-1038, C.R.98.2002, because Pinnacol did not initiate any forfeiture proceeding within one year of her August 1996 convietion. However, because we have concluded the forfeiture in § 8-48-202 is a criminal sanction automatic upon conviction, we need not address this contention.

IV.

We also reject plaintiff's final contention that a question of fact-whether the forfeiture provision constitutes an excessive fine-precludes summary judgment.

The Eighth Amendment and Colo. Const. art. II, § 20 similarly prohibit the imposition of "excessive fines." People v. Bolt, 984 P.2d 1181 (Colo.App.1999).

A fine is a payment to a sovereign as punishment for some offense. See People v. Coolidge, supra; see also Jardanowski v. Indus. Comm'n, 197 Ariz, 246, 3 P.3d 1166 (Ct.App.2000)(dealing with similar workers' compensation forfeiture statute).

In Simon v. State Compensation Insurance Authority, 946 P.2d 1298 (Colo.1997), the supreme court determined that the Colorado Compensation Insurance Authority, Pinnacol's predecessor, was a "person" subject to suit under 42 U.S.C. $ 1988 (2002) rather than an arm of the state.

The factors relied on by the supreme court in Simon are equally applicable to Pin-nacol. Pinnacol's employees are exempt from the state personnel system, § 8-45-101(8), C.R.98.2002; Pinnacol's enabling statute says Pinnacol is not a state agency, § 8-45-101(1), C.R.S$.2002; the state's lability is limited to the amount in the fund, § 8-45-102(1), C.R.S$.2002; and Pinnacol's enabling statute specifies that Pinnacol "shall operate as a domestic mutual insurance company," § 8-45-101(1).

Thus, we conclude the forfeiture statute does not constitute payment to a sovereign and does not offend the excessive fines clauses. See also Jardanowski v. Indus. Comm'n, supra; Wright v. Uniforms for Indus., 772 So.2d 560 (Fla.Dist.Ct.App.2000)(dealing with similar workers' compensation fraud statute). Accordingly, even assuming a factual dispute over disproportionality between the PPD benefits forfeited and the TTD benefits directly tainted by plaintiffs misrepresentation, we conclude that summary judgment was proper.

V.

Our disposition obviates the need to address plaintiff's request for attorney fees.

The judgment is affirmed.

Chief Judge DAVIDSON and Judge ROY concur.