author: Chief Judge HUME.

text:
    James GERGEL and Carol Gergel, Plaintiffs-Appellants, v. HIGH VIEW HOMES, L.L.C. and Linda A. Elliot, Defendants-Appellees.
    No. 01CA1321.
    Colorado Court of Appeals, Div. I.
    July 5, 2002.
    Certiorari Denied Dec. 16, 2002.

      Vanatta, Sullan, Sandgrund & Sullan, P.C., Ronald M. Sandgrund, Scott F. Sullan, Greenwood Village, Colorado, for Plaintiffs-Appellants.
    Brega & Winters, P.C., Jamás W. Bain, Denver, Colorado, for Defendants-Appellees.
   Opinion by

Chief Judge HUME.

Plaintiffs, James and Carol Gergel, appeal the trial court’s order denying their motion to enjoin arbitration of their construction defect claims against defendants, High View Homes, L.L.C. and Linda A. Elliot. Plaintiffs also appeal the trial court’s order denying their motion for leave to file a supplemental complaint. We dismiss the appeal without prejudice for lack of jurisdiction.

Plaintiffs initially brought suit in the trial court. Relying on a provision in a contract between plaintiffs and High View calling for arbitration of disputes, defendants moved to compel arbitration of plaintiffs’ claims. The trial court denied the motion, ruling that plaintiffs’ claims were not subject to the arbitration provision under the intertwining doctrine. A division of this court reversed that decision. Gergel v. High View Homes, L.L.C., 996 P.2d 233 (Colo.App.1999)(Gerpel I). On remand, pursuant to mandate, the trial court stayed its proceedings and directed the parties to arbitrate.

The parties then contacted the American Arbitration Association (AAA), as called for by the arbitration provision. Following initial efforts to select an arbitration panel, plaintiffs filed the combined motion that is the subject of this appeal. The substantive bases for plaintiffs’ motion were claims that the AAA was not impartial and had demanded excessive and unreasonable administrative fees.

Plaintiffs requested leave to file a supplemental complaint detailing their factual allegations and adding claims for declaratory and injunctive relief against the AAA. Plaintiffs likewise requested a temporary restraining order, a preliminary injunction, and a permanent injunction against the arbitration and asked the court to reassert its jurisdiction to determine the merits of the action against defendants. Alternatively, plaintiffs requested that the court select an arbitrator to determine the matter.

The trial court initially denied the request for a temporary restraining order. After briefing, the court denied the motion for leave to file a supplemental complaint in light of the Gergel I mandate to stay proceedings and also denied the motion to enjoin the arbitration, concluding that the fees charged by the AAA did not render the arbitration agreement void as unconscionable. The trial court then again directed the parties to proceed with arbitration. This appeal followed.

I.

Plaintiffs request that we reverse the trial court’s order denying their motion to enjoin arbitration. Concluding that we are not authorized to hear this interlocutory appeal, we dismiss the appeal for lack of jurisdiction.

A.

Generally, the entry of a final judgment is a jurisdictional prerequisite to an appeal. See G.R.C.P. 54; C.A.R. 1(a). A final judgment is one that constitutes a complete determination of the rights of the parties involved. However, an appellate court may review interlocutory orders where specifically authorized by statute or rule. J.P. Meyer Trucking & Constr., Inc. v. Colo. Sch. Dists. Self Ins. Pool, 18 P.3d 198 (Colo.2001). The stay of proceedings in the trial court mandated by Gergel I did not constitute a final judgment. See Things Remembered v. Fireman’s Ins. Co., 924 P.2d 1089 (Colo.App.1996); Monatt v. Pioneer Astro Indus., Inc., 42 Colo.App. 265, 592 P.2d 1352 (1979).

A limited right of interlocutory appellate review was created by the Colorado Uniform Arbitration Act of 1975, § 13-22-201, et seq., C.R.S.2001. The Act governs this case involving the arbitration of a dispute arising in Colorado. See Marina Cove Condo. Owners Ass’n v. Isabella Estates, 109 Wash.App. 230, 34 P.3d 870 (2001)(Federal Arbitration Act does not preempt state arbitration law in case of home construction not affecting interstate commerce). The Act expresses a policy preference for arbitration as an alternative means of dispute resolution. See § 13-22-202, C.R.S.2001; Huizar v. Allstate Ins. Co., 952 P.2d 342 (Colo.1998).

The Act permits a party to petition the trial court to stay judicial proceedings and compel arbitration when there is an agreement to arbitrate between the parties to the action, § 13-22-204(1), C.R.S.2001, such as the petition defendants filed in Gergel I. The Act also permits motions to stay arbitration proceedings that are either threatened or commenced in the absence of a valid arbitration agreement. § 13-22-204(2), C.R.S.2001.

With respect to appellate review, the Act states as follows:

An appeal may be taken from:
(a) An order denying an application to compel arbitration made under section 13-22-204;
(b) An order granting an application to stay arbitration made under section 13-22-204(2); (c) An order confirming or denying confirmation of an award;
(d) An order modifying or correcting an award;
(e) An order vacating an award without directing a rehearing;
(f) A judgment or decree entered pursuant to the provisions of [the Act].

§ 13-22-221(1), C.R.S.2001.

By this provision, the Act creates a right of interlocutory appeal available only to parties seeking to arbitrate. The specific language of the Act reveals a legislative intent to limit appeals to the listed circumstances. See J.P. Meyer Trucking & Constr., Inc. v. Colo. Sch. Dists. Self Ins. Pool, supra.

Divisions of this court have previously held that an order compelling arbitration is not appealable because it is not denominated as such by the Act. Associated Natural Gas, Inc. v. Nordic Petroleums, Inc., 807 P.2d 1195 (Colo.App.1990); Frontier Materials, Inc. v. City of Boulder, 663 P.2d 1065 (Colo.App.1983). Likewise, we hold that the Act, in expressly authorizing only a right to appeal from an order granting a stay of arbitration, does not authorize an appeal from an order denying a stay of arbitration.

In this regai’d, we join other jurisdictions that have construed the Uniform Arbitration Act in the same manner. Hodes v. Comprehensive Health Assoc., P.A., 9 Kan.App.2d 36, 670 P.2d 76 (1983)(collecting cases); J.M. Huber Corp. v. Main-Erbauer, Inc., 493 A.2d 1048 (Me.1985); Sch. Comm. v. Agawam Educ. Ass’n, 371 Mass. 845, 359 N.E.2d 956 (1977)(colleeting cases). We also note that under the parallel provision of the Federal Arbitration Act, an appeal from an interlocutory order denying a stay of arbitration is expressly precluded. 9 U.S.C. § 16(b)(4); see Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000).

B.

Plaintiffs nevertheless contend that their appeal is not barred by the Act because they are not appealing a decision on the arbitrability of their claims, as was decided in Gergel I. Rather, they argue now, for the first time, that they are being deprived of access to the arbitral forum by what they characterize as unreasonable and excessive administrative fees rendering the arbitration agreement void as unconscionable. Plaintiffs argue that they do not appeal the question of arbitrability, but seek relief from conditions that bar them from completing the arbitration.

This argument fails for two reasons. First, despite plaintiffs’ attempt to distinguish their present motion from the substance of the issues litigated in Gergel I, we discern no distinction material to the right to appeal. Both here and in Gergel I, the essence of the dispute is the existence of a valid agreement compelling arbitration of the claims at issue. The determination of a valid agreement by the trial court does not trigger an appeal right under the Act. See §§ 13-22-204, 13-22-221, C.R.S.2001. For purposes of that determination, it is immaterial that in Gergel I the issue was whether the claims were subject to the arbitration agreement, while here the issue is the validity of the arbitration agreement itself.

Second, even if plaintiffs’ motion here concerned something other than the arbitrability of their claims under the arbitration agreement, the trial court’s interlocutory order would still not be appealable. See J.P. Meyer Trucking & Constr., Inc. v. Colo. Sch. Dists. Self Ins. Pool, supra. During oral argument before this court, defendants’ counsel conceded that the issue of whether the arbitration agreement has been rendered unconscionable will not be mooted either by proceeding to an arbitration award or by a default for failure to advance fees, but that the trial court’s order on unconscionability may be appealed upon entry of a final judgment after arbitration proceedings have been concluded.

C.

Plaintiffs argue primarily that we may exercise jurisdiction over this appeal pursuant to C.A.R. 1(a)(3), which permits appeal of the denial of a request for temporary injunction. Plaintiffs note that their motion in the trial court was styled as a motion for preliminary injunction. We are not persuaded.

Pursuant to C.A.R. 1(a)(3), the grant or denial of a temporary injunction is an appealable order. Under this rule, the grant or denial of a preliminary injunction may be reviewed. See, e.g., Rathke v. MacFarlane, 648 P.2d 648 (Colo.1982); Colo. State Bd. of Optometric Exam’rs v. Dixon, 165 Colo. 488, 440 P.2d 287 (1968)(construing identical provision in precursor to C.A.R.). Compare In re Marriage of Finer, 893 P.2d 1381 (Colo.App.l995)(court of appeals has initial jurisdiction for appeals from grant or denial of a preliminary injunction), with Joel L. Schaffer, P.C. v. Christopher M. Sullivan, P.C., 844 P.2d 1327 (Colo.App.1992)(court of appeals has jurisdiction for appeal of denial of preliminary injunction only because supreme court refused to accept transfer of case).

However, in determining whether a trial court’s order is subject to review, the appellate court must consider the substance and not the form of the order. See Levine v. Empire Sav. & Loan Ass’n, 192 Colo. 188, 557 P.2d 386 (1976); Johnson v. Johnson, 132 Colo. 236, 287 P.2d 49 (1955); see also O’Connell v. Colo. State Bank, 633 P.2d 511 (Colo.App.l981)(order titled as temporary restraining order properly characterized as preliminary injunction and therefore subject to appellate review).

An order that is the functional equivalent of an order directing arbitration is not appealable. Thomas v. Farmers Ins. Exch., 857 P.2d 532 (Colo.App.1993); cf. Camelot Invs., L.L.C. v. LANDesign, L.L.C., 973 P.2d 1279 (Colo.App.l999)(order that is the functional equivalent of the denial of a motion to compel arbitration is appealable).

The purpose of a temporary injunction is to prevent a tort or wrong and to preserve the status quo pending a final hearing and determination of the parties’ controverted rights. Spickerman v. Sproul, 138 Colo. 13, 328 P.2d 87 (1958); Monatt v. Pioneer Astro Indus., Inc., supra.

Here, plaintiffs requested neither temporary relief nor preservation of the status quo. Instead, they requested that the trial court declare the arbitration provision void as unconscionable, permanently enjoin the arbitration proceedings, and reassert jurisdiction of their substantive claims. The order rejected this request on its merits and instead directed the parties back to arbitration.

Plaintiffs also requested temporary injunc-tive relief, namely a temporary restraining order and a stay of arbitration pending the court’s determination of their motion. However, although the court denied that temporary relief, it appears from, the record that the arbitration proceedings were nevertheless held in abeyance pending the court’s ruling. In any event, plaintiffs do not challenge here the trial court’s refusal to enjoin arbitration proceedings pending its determination of plaintiffs’ combined motion. See Hodes v. Comprehensive Health Assocs., P.A., supra (order denying stay of arbitration cannot be construed as order denying a motion for injunction where movant obtained relief in nature of temporary injunction by restraint of arbitration pending determination of request for stay).

Here, plaintiffs request that we review the trial court’s ruling refusing to permanently enjoin arbitration proceedings and directing the parties back to arbitration. Such a ruling is not the denial of a temporary injunction subject to review under C.A.R. 1(a)(3). Instead, it is an interlocutory order directing arbitration, which is not appealable. See Thomas v. Farmers Ins. Exch., supra.

II.

Plaintiffs contend that the trial court wrongly denied their motion to file a supplemental complaint pursuant to C.R.C.P. 15(d) adding the AAA as a defendant. For reasons similar to our disposition above, we dismiss for lack of jurisdiction.

No authority permits appellate review of an interlocutory order addressing a motion to file a supplemental complaint. Analogously, there is no right of appeal from interlocutory orders denying leave to serve a complaint on a third-party defendant, Weaver v. Bankers Life & Cas. Co., 146 Colo. 157, 360 P.2d 807 (1961), or otherwise addressing a motion to add parties. First Nat’l Bank v. Rozzelle Eng’g Co., 138 Colo. 120, 330 P.2d 533 (1958).

Accordingly, we lack jurisdiction to consider plaintiffs’ contention that the trial court abused its discretion in denying their motion.

The appeal is dismissed without prejudice.

Judge METZGER and Judge WEBB concur.


source: Caselaw Access Project

author: Judge METZGER.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William L. MEADS, Defendant-Appellant.
    No. 00CA1864.
    Colorado Court of Appeals, Div. I.
    July 18, 2002.
    Certiorari Granted Dec. 16, 2002.
    Ken Salazar, Attorney General, Paul Koeh-ler, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Tracy C. Renner, Deputy State Public Defender, Denver, Colorado, for De-fendan1>-Appellant.
   Opinion by

Judge METZGER.

Defendant, William L. Meads, appeals the judgment of conviction entered upon jury verdicts finding him guilty of theft and second degree aggravated motor vehicle theft. We affirm.

After the owner of a truck had parked it, with keys left in the ignition, in a Colorado Springs salvage yard belonging to defendant’s stepfather, defendant took the truck without permission. Approximately twenty-four hours later, while defendant was driving the truck off-road in Jefferson County, it became stuck in a pile of manure that was three to four feet high and over twenty feet long.

The manure owner happened along, saw that the truck was stuck, and spent approximately thirty minutes trying to dig it out by hand and with his bobcat. Defendant asked several times to operate the bobcat himself and offered to give the manure owner some tools out of the truck in exchange. The owner declined, saying “I saw what you did to your truck, you’re not driving my tractor.” Defendant said he would get someone else to help him, then left and walked a quarter of a mile to a gas station, where he made a telephone call. In the meantime, because the truck was almost extricated from the manure when defendant left, the manure owner became suspicious and called the sheriff. A check showed that the truck had been reported stolen. Defendant was then arrested at the gas station.

After a jury found defendant guilty, he was sentenced to four years in the Department of Corrections for theft and to one year in jail for second degree aggravated motor vehicle theft, to be served concurrently.

I.

Defendant first contends the trial court violated his constitutional right to due process when it refused his theory of defense instruction and submitted, over his objection, a revised theory of defense instruction. We disagree.

A defendant is entitled to a theory of the case instruction if the record contains any evidence to support the theory. See People v. Nunez, 841 P.2d 261 (Colo.1992). However, “[T]his does not mean that just any instruction so labeled should be given by the trial court.” Sterling v. People, 151 Colo. 127,131, 376 P.2d 676, 678 (1962).

A proper theory of the case instruction should explain a defendant’s view of what the evidence shows, must be general and brief, and must instruct the jury on the legal effect of the explanation. See People v. Luu, 813 P.2d 826 (Colo.App.1991), ajfd, 841 P.2d 271 (Colo.1992).

Defendant’s proffered instruction stated: “[Defendant] asserts that when he borrowed [the victim’s] truck he had every intention of bringing it back. However, due to circumstances beyond his control he was not personally able to return the truck.”

The court rejected the instruction as being unsupported by the evidence. However, after further argument by defense counsel, the court gave an instruction that stated: “The defense theory of the case is that the defendant borrowed [the victim’s] truck with the intention of returning it.”

We find no error in the trial court’s ruling. Defendant did not testify. Thus, the first sentence of the instruction relating to his intent was unsupported by any direct evidence. To the extent defendant argues that his intent could have been inferred from his actions and relationship with the victim, the trial court’s redrafted instruction, which set out defendant’s theory of intent, sufficed to convey the point to the jury.

The second sentence of defendant’s theory of defense instruction was also problematic. While the facts that the truck became stuck in the pile of manure and defendant was arrested may or may not have contributed to his inability to return the truck, the critical issue was his intent twenty-four hours earlier, when he took the truck. See People v. Nunez, supra.

Accordingly, we reject defendant’s contention.

II.

Defendant next contends the prosecutor misstated the law regarding the meaning of “intent to permanently deprive” during closing argument and, thus, violated his constitutional rights to due process and a fair trial. We find no misstatement and, therefore, reject the contention.

In her initial closing argument, the prosecutor said:

Intent to permanently deprive doesn’t mean [the victim] would never get the truck back. It just means the defendant wasn’t going to return it, and he didn’t return it.... That’s what intent to permanently deprive means. It means he was making no attempt himself to return the property.
In rebuttal closing, the prosecutor stated: Defense counsel used the term “forever.” To keep the truck forever. You know, forever is a pretty long time. Pretty long time, and that’s not the standard here. Rather, [he] simply did not intend on himself returning the vehicle. Obviously, that....
[t]he only thing I have to prove to you is not that forever [the victim] would be deprived of this truck. [He] got his property back from the police [and] an alert citizen. Then, the person wouldn’t be guilty, right, because that [victim] had gotten their belongings back. Whether it was a stereo from their home, or in this case a car. [The victim] got that property back, but through no actions, no actions of the defendant. ...

As the supreme court held in Hucal v. People, 176 Colo. 529, 534-35, 493 P.2d 23, 26 (1971):

Theft does not require permanent deprivation of property; once the wrongful appropriation occurs, the statute requires coexistent intent to permanently deprive of use and benefit....
If the rule were that there had to be a permanent deprivation of property before a conviction could be sustained, every time stolen property was recovered and returned to its true owner the thief would have to be acquitted. Such a rule would be inane.

The key issue in the case was defendant’s intent when he took the truck. Thus, the prosecutor’s comments on the timing of any possible return of the truck were not misstatements of the law. See Hucal v. People, supra. Therefore, defendant’s contention is rejected.

III.

Finally, defendant contends that, because second degree aggravated motor vehicle theft is a lesser included offense of theft, his conviction of the former should merge into his conviction of the latter. We do not agree.

If proof of the facts establishing the statutory elements of the greater offense necessarily establishes all of the elements of the lesser offense, the lesser offense is included in the greater. People v. Leske, 957 P.2d 1030 (Colo.1998).

Section § 18-4-401, C.R.S.2001, defines the offense of class 4 felony theft. It provides:

(1) A person commits theft when he knowingly obtains or exercises control over anything of value of another without authorization, or by threat or deception, and:
(a) Intends to deprive the other person permanently of the use or benefit of the thing of value....
(2) Theft is: ...
(c) A class 4 felony if the value of the thing involved is five hundred dollars or more but less than fifteen thousand dollars ....

The elements of second degree aggravated motor vehicle theft, a class 2 misdemeanor, in violation of § 18-4-409(4), C.R.S.2001, are:

A person commits aggravated motor vehicle theft in the second degree if he or she knowingly obtains or exercises control over the motor vehicle of another without authorization or by threat or deception.... Aggravated motor vehicle theft in the second degree is a:
(c) Class 2 misdemeanor if the value of the motor vehicle ... is less than five hundred dollars.

One of the elements of felony theft is that the actor have the intent to permanently deprive the victim of the use or benefit of a thing of value, but misdemeanor second degree aggravated motor vehicle theft contains no such element. Also, second degree aggravated motor vehicle theft requires that the thing taken be a motor vehicle, while the theft statute does not.

Consequently, second degree aggravated motor vehicle theft is not a lesser included offense of theft, and defendant’s conviction of the former should not merge into his conviction of the latter.

The judgment is affirmed.

Judge ROTHENBERG and Judge KAPELKE concur.


author: Justice KIRSHBAUM.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jason C. FALLS, Defendant-Appellant.
    No. 00CA2169.
    Colorado Court of Appeals, Div. A.
    July 18, 2002.

      Certiorari Denied Dec. 16, 2002.

    Ken Salazar, Attorney General, John J. Fuerst, III, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Anne Stockham, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

      . Justice KOURLIS would grant as to the following issue:
      Whether defendants sentenced as habitual criminals for crimes committed after July 1, 1999, are subject to mandatory parole.

   Opinion by

Justice KIRSHBAUM.

Defendant, Jason C. Falls, appeals from the trial court’s order denying his motion for postconviction relief. We reverse and remand for correction of the mittimus.

Pursuant to a plea agreement, defendant pled guilty in April 1997 to attempted felony menacing and three habitual criminal counts. The court imposed a sentence of six years to the Department of Corrections plus a period of mandatory parole.

In his Crim. P. 35(c) motion, defendant asserted that the imposition of mandatory parole violated his right to equal protection. However, on appeal, defendant argues only that his sentence is invalid on statutory grounds. Specifically, he contends that because he is a habitual criminal, he is subject to the discretionary parole period established by §§ 17-2-201(5)(a) and 17-2-213, C.R.S. 2001, rather than the mandatory parole period provided in §§ 17-22.5-403(7) and 18 — 1— 105(l)(a)(V), C.R.S.2001. Although this specific argument was not presented to the trial court, an appellate court may elect to address questions concerning the legality of a sentence or implicating fundamental rights. Crim. P. 35(a); Mulkey v. Sullivan, 753 P.2d 1226 (Colo.1988). We choose to do so here.

When construing statutes, a court must ascertain and give effect to the intent of the General Assembly. Martin v. People, 27 P.3d 846 (Colo.2001). Clear and unambiguous statutory language must be construed as written. People v. Marquez, 983 P.2d 159 (Colo.App.1999). Statutory schemes must be considered as a whole, and harmonious effect must be given to all parts thereof. Martin v. People, supra. Any interpretation that renders a clause meaningless should be avoided. People v. Terry, 791 P.2d 374 (Colo.1990).

If statutes conflict irreconcilably, specific statutory provisions prevail over general provisions, unless the general provisions were adopted later in time and the General Assembly clearly intended the general provisions to prevail. Section 2-4-205, C.R.S. 2001; Martin v. People, supra.

Section 17-2-213 authorizes the State Board of Parole to establish the duration of parole periods for persons sentenced as habitual criminals. Section 17-2-201(5)(a) contains the following pertinent language:

As to any person sentenced for conviction of a felony committed prior to July 1,1979, or of a misdemeanor and as to any person sentenced for conviction of an offense involving unlawful sexual behavior or for which the factual basis involved an offense involving unlawful sexual behavior, as defined in section 18-3-412.5(1), C.R.S., committed prior to July 1, 1996, or a class 1 felony and as to any person sentenced as a habitual criminal pursuant to section 16-13-101, C.R.S., the board has the sole power to grant or refuse to grant parole and to fix the condition thereof and has full discretion to set the duration of the term of parole granted, but in no event shall the term of parole exceed the maximum sentence imposed upon the inmate by the court or five years, whichever is less, (emphasis added)

These provisions irreconcilably conflict with § 17-22.5-403(7), which provides that if the parole board grants parole, it shall set the duration of the parole period at the mandatory period of parole for convicted felons established by § 18-l-105(l)(a)(V). Martin v. People, supra.

In Martin, the supreme court concluded that the specific provisions of § 17-2-201(5)(a) prevailed over the general provisions of §§ 17-22.5-403(7) and 18-1-105(l)(a)(V). Defendant contends that Martin requires reversal of the trial court’s order. We agree.

The People argue that Martin applies only to sex offenders, not to habitual criminals. Noting that the 1996 amendments to § 17-2-201(5)(a) do not refer to habitual criminals, the People argue that the provisions of that statute, while later in time, apply only to sex offenders and do not supplant the parole provisions relating to habitual offenders enacted in 1993. We do not agree with the People’s argument.

The court’s analysis in Martin does not turn upon the 1996 amendments. Rather, the court stated that the statute as enacted in 1979 was specific, that the 1996 amendments “merely affirmed an exception to the mandatory parole regime,” and that the amendments “did not change section 17-2-201(5)(a) from a specific provision to a general one.” Martin v. People, supra, 27 P.3d at 861-62.

Absent clear and unmistakable legislative intent to the contrary, a general statute will not be deemed to have repealed an existing specific statute. Martin v. People, supra; Uberoi v. University of Colorado, 686 P.2d 785 (Colo.1984). No such clear and unmistakable intent is expressed in the 1996 amendments to § 17-2-201(5)(a). Furthermore, the People’s proposed statutory construction would render the habitual criminal provisions contained in §§ 17-2-213 and 17-2-201(5)(a) meaningless. We conclude the General Assembly intended that habitual criminals are subject to the discretionary parole statute.

Additional support for our conclusion is found in People v. Marquez, supra. In Marquez, a division of this court held that the plain language of both §§ 17-2-213 and 17-2 — 201(5)(a) requires the conclusion that habitual criminals are subject to discretionary parole. Contrary to the People’s assertion that Marquez applies only to habitual criminals convicted between 1979 and 1985, the division stated that the statutes apply regardless of when the offense was committed.

Accordingly, the order denying defendant’s Crim. P. 35(c) motion is reversed, and the case is remanded to the trial court with directions to correct the mittimus to reflect the applicable period of discretionary parole.

Judge TAUBMAN and Judge STERNBERG concur.

      . Sitting by assignment of the Chief Justice under provisions of Colo. Const, art. VI, § 5(3), and § 24-51-1105, C.R.S.2001.


author: Judge VOGT.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David BENAVIDEZ, Defendant-Appellant.
    No. 01CA0585.
    Colorado Court of Appeals, Div. IV.
    Aug. 1, 2002.
    As Modified on Denial of Rehearing Sept. 26, 2002.
    Certiorari Dismissed Dec. 4, 2002.
    Ken Salazar, Attorney General, John J. Fuerst, III, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Andrea R. Manning, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge VOGT.

Defendant, David Benavidez, appeals the sentence to probation imposed following his guilty plea to third degree sexual assault. We vacate the sentence in part and remand for resentencing.

In 1999, defendant was charged with three felony sexual assault counts arising out of incidents involving a nine-year-old girl. After a jury trial on these counts ended in a mistrial, defendant entered into a plea agreement. In exchange for dismissal of the original charges, he pled guilty to an added count of third degree sexual assault, a class one misdemeanor under Colo. Sess. Laws 1989 ch. 148, § 18-3-404(2) at 830. The applicable sentencing range was six months to two years under § 18-1-106(1) and (3)(b)(II)(B), C.R.S.2001. The parties stipulated to a sentence to probation subject to recommended treatment provisions and a fifteen-day jail term. Both the prosecutor and the probation department recommended a two-year term of probation.

At the provideney and sentencing hearings, counsel and the trial court discussed whether the court had authority, in a misdemeanor case, to impose a probationary sentence longer than the maximum term of imprisonment allowed for the offense. The court concluded that it did and sentenced defendant to a five-year term of supervised probation plus fifteen days in county jail, to be served on weekends.

Defendant contends on appeal that the trial court exceeded its authority when it sentenced him to a five-year term of probation for a class one misdemeanor offense. We agree.

Probation is a statutory creation. The terms of probation must be derived from the applicable statute. A probationer may challenge terms of probation that are not within the statutory authority of the court. People v. Brockelman, 933 P.2d 1315 (Colo.1997).

In People v. Knaub, 624 P.2d 922 (Colo.App.1980), a division of this court held in a misdemeanor case that the sentencing court had no authority to impose a probationary sentence longer than the maximum jail term allowed for the offense. The division concluded that such a limitation was warranted in light of the language of § 16-11-101(1), C.R.S.2001, which enumerates a trial court’s sentencing alternatives “[wjithin the limitations of the penalties provided by the classification of the offense of which a person is found guilty.”

Here, the prosecutor argued, and the trial court appears to have agreed, that Knaub had been overruled by People v. Flenniken, 749 P.2d 395 (Colo.1988). In Flenniken, the court of appeals had relied on Knaub in holding that, absent extraordinary aggravating circumstances, a defendant in a felony case could not be sentenced to a term of probation in excess of the maximum presumptive range sentence for that felony. Finding that reliance on Knaub “misplaced,” People v. Flenniken, supra, 749 P.2d at 400 n. 4, the supreme court held that such a defendant could be sentenced to a term of probation as long as the maximum term of imprisonment in the aggravated range, even without a finding of extraordinary aggravating circumstances. In so holding, the supreme court discussed and distinguished Knaub, noting that it was a misdemeanor case and that the penalties for misdemeanors were not stated in terms of presumptive sentencing ranges.

Conceding that the supreme court did not expressly overrule Knaub, the People assert that it did so impliedly by repudiating the basis for the Knaub court’s holding. However, based on our review of Flenniken and the supreme court’s characterization of it in later cases, we agree with defendant that Flenniken did not impliedly overrule Knaub.

In addition to discussing Knaub without overruling it, the Flenniken court expressly limited its holding, clarifying that: “We ... are not faced with — and therefore do not address — the question of whether a term of probation may exceed the maximum sentence in the aggravated range for the offense for which a defendant is sentenced.” People v. Flenniken, supra, 749 P.2d at 400 n. 4.

In Hunter v. People, 757 P.2d 631 (Colo. 1988), the supreme court relied on Flenniken in upholding a probationary sentence that was within the maximum aggravated range for the felony at issue. In its discussion of Flenniken, the court noted: “We did not determine the outer limit of a sentencing court’s authority to impose probation in Flenniken .... ” Hunter v. People, supra, 757 P.2d at 632.

In People v. Wade, 757 P.2d 1074 (Colo. 1988), the supreme court considered whether the City and County of Denver could authorize its county court to impose probationary sentences longer than the maximum jail time applicable to the ordinance violation in question. Concluding that a home rule city’s sentencing scheme was not constitutionally required to be consistent with the state’s sentencing provisions, the court stated:

Even if state statutes preclude the imposition of probation for a term longer than the maximum imprisonment authorized for a particular offense — an issue on which we express no opinion — 'that limitation serves as no constraint on a home rule city’s right to impose its own system of punishments for violations of its ordinances.

People v. Wade, supra, 757 P.2d at 1077 (emphasis added and footnote omitted). The court pointed out that it had not addressed in Flenniken “whether a term of probation may exceed the applicable maximum sentence in the aggravated range, nor whether a misdemeanor defendant may be sentenced to a term of probation exceeding the maximum authorized term of imprisonment.” People v. Wade, supra, 757 P.2d at 1077 n. 3 (emphasis added).

The language used by the supreme court in Flenniken, Hunter, and Wade, in our view, establishes that it did not view Flenniken either as overruling Knaub or as establishing a broad rule recognizing no constraints on a sentencing court’s discretion regarding probationary sentences.

The People suggest that Flenniken impliedly repudiated the basis for the holding in Knaub when it refused to rely on the § 16-11-101 language (“[w]ithin the limitations of the penalties provided by the classification of the offense”) on which Knaub had relied. We do not agree. In Flenniken, the supreme court declined to read § 16-11-101 “as imposing the limitations of section 18-1-105 on probation terms,” because “such a reading would render the express limitations in sections 16 — 11—101(l)(b) and 16-11-302 mere surplusage.” People v. Flenniken, supra, 749 P.2d at 399. However, the statutes that would have been rendered “mere sur-plusage” pertain to felony sentencing. Thus, this statement does not establish that the court rejected the Knaub analysis in misdemeanor cases.

Nor do we agree with the People that the language of § 16-11-202(1), C.R.S.2001, authorizing a court to grant “probation for such period and upon such terms and conditions as it deems best,” gives courts unlimited discretion to determine the probationary period. The supreme court in Flenniken, like the division in Knaub, acknowledged this statute, but, as noted above, nevertheless declined to announce a broad rale dispensing with any constraints on a sentencing court’s authority to impose a term of probation.

In sum, we conclude that People v. Knaub was not overruled by Flenniken and accordingly was controlling in the misdemeanor case before the trial court here. Thus, the trial court exceeded its authority when it sentenced defendant to a probationary term longer than the two-year maximum sentence to incarceration allowed for his offense.

In their petition for rehearing, the People raise policy concerns not raised in then-answer brief or at oral argument and cite authority from this court that they claim warrants a contrary conclusion. We do not address the policy arguments made for the first time in petition for rehearing. As to the assertedly contrary authority, People v. Martinez, 844 P.2d 1203 (Colo. App. 1992), dealt with probation for a felony and is in-apposite. People v. Salas, 42 P.3d 68 (Colo. App. 2001), announced after the trial court ruling at issue here, relied on Martinez to reject, in one sentence, a contention made for the first time on appeal that a probationary sentence on a misdemeanor could not exceed the term of incarceration. It did not further analyze the issue and did not discuss Knaub or Flenniken. Thus, we do not view Salas as supporting a contrary-resolution of the narrow issue presented for our review: namely, whether the trial court erred in concluding that Knaub had been overruled by Flenniken.

The portion of defendant’s sentence imposing a five-year period of probation is vacated. The case is remanded to the trial court to resentence defendant to a term of probation no longer than two years, the maximum allowable statutory sentence to incarceration under § 18-1-106 for third degree sexual assault.

Judge NEY and Judge ROTHENBERG concur.


text:
    In the Matter of the Petition of M.G., Petitioner-Appellant, for the Adoption of Three Children, and Concerning R.V., Respondent-Appellee, and B.V., Intervenor-Appellee.
    No. 01CA0973.
    Colorado Court of Appeals, Div. I.
    Sept. 12, 2002.
    Certiorari Denied Dec. 16, 2002.

      Beltz Law Firm, W. Thomas Beltz, Daniel A. West, Colorado Springs, Colorado, for Petitioner-Appellant.
    Stephen D. Benson, Colorado Springs, Colorado, for Respondenb-Appellee.
    Michelle Velasquez Starr, P.C., Michelle Velasquez Starr, Colorado Springs, Colorado, for Intervenor-Appellee.
   Opinion by

Judge METZGER.

In this consolidated action involving both adoption and dependency and neglect proceedings, petitioner, M.G., appeals the trial court’s order denying her petitions to adopt her three grandchildren. She also appeals the trial court’s order awarding visitation to intervenor, B.V., the children’s paternal grandmother. We affirm.

Respondent, R.V., is the father of the children, and petitioner’s daughter was their mother. Respondent murdered petitioner’s daughter and is serving a forty-year prison sentence for that crime.

The children were originally placed with petitioner immediately after the murder in December 1997. Following commencement of a dependency and neglect action in January 1998, the parties participated in mediation and reached an agreement that the children would reside with petitioner a majority of the time and intervenor would have extended visitation. Based on that agreement, the court awarded petitioner permanent custody of the children on February 18, 1998. Respondent’s parental rights were not terminated.

Petitioner sought to adopt the children after she and intervenor had a disagreement. She also petitioned for a termination of respondent’s parental rights with respect to all three children. Respondent moved to dismiss the petitions, citing the prior mediated agreement and claiming that the requested adoption would not be in the children’s best interests because it would result in their alienation from his family. Intervenor sought to enforce her right to visitation under both the agreement and the grandparent visitation statute, § 19-1-117, C.R.S.2001, and argued that her right would be extinguished if the adoptions were permitted.

The trial court found that, while the evidence consistently showed that petitioner’s home was a “wonderful placement” for the children, it also uniformly attested to the strong bond the children had developed with intervenor and other members of the paternal family. Further, the court found no indication that intervenor had ever done anything to harm the children,.

The court also found that, because of the tremendous loss the children had suffered, they needed as much family support as possible and they essentially would be retrauma-tized if contact with intervenor and the paternal relatives were discontinued. The court also pointed out that the therapists who had testified agreed that the children will need contact with their father to “process the tragedy” they had experienced. Therefore, the court concluded, the “best interests of the children in this case would not be served by terminating the parental rights of [respondent] because if those rights are terminated, then by application of the law, [inter-venor] would no longer have her status as ‘grandparent’ ” and consequently would lack any legal basis to seek visitation.

I.

Petitioner first contends the grandparent visitation statute, § 19-1-117, violates the due process clauses of both the United States and Colorado Constitutions. She also argues that the statute is unconstitutional on its face and as applied in this case. We disagree.

A division of this court recently reviewed the facial constitutionality of § 19-1-117 in light of the Supreme Court’s decision in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). The division found that § 19-1-117 is not unconstitutional on its face merely because it authorizes visitation rights for grandparents. In re Custody of CM., — P.3d —, 2002 WL 31116773 (Colo.App. No. 00CA2313, Sept. 12, 2002).

The division noted that, unlike the Washington statute found to be deficient in Troxel, § 19-1-117 uses the best interests standard, limits standing to grandparents, and permits a petition for visitation only if there is or has been a child custody case. The division further relied on In re Custody of C.C.R.S., 892 P.2d 246 (Colo.1995), and explained that the best interests standard must be applied with a presumption that the biological parent has a first and prior right to custody. The division concluded that, because § 19-1-117 is more narrowly drawn than the statute in Troxel and can be construed to incorporate the presumption favoring biological parents’ wishes inherent in the best interests standard, it satisfies the constitutional requirements discussed in Troxel.

However, because the trial court in CM. did not give any special weight to the mother’s wishes regarding visitation with the grandmother, the division remanded for reconsideration of the grandmother’s petition under the Troxel requirements.

We adhere to the finding of facial constitutionality in C.M. Further, although petitioner has urged that § 19-1-117 is unconstitutional under the Colorado Constitution, she has not alleged that any specific due process requirements under the Colorado Constitution differ from those in the United States Constitution that were discussed in Troxel. Thus, we need not separately examine the facial constitutionality of § 19-1-117 under the Colorado Constitution.

Petitioner also urges that the presumption favoring biological parents extends to legal guardians and that the trial court here failed to defer to her decisions concerning the intervenor’s visitation. She maintains that, therefore, the trial court did not apply § 19-1-117 in a constitutional manner when it awarded visitation to the intervenor. We are not persuaded.

First, nothing in Troxel requires a trial court to defer to a custodian’s wishes. Second, the status of a custodian differs from that of a biological parent because one standing in loco parentis may elect to be relieved of that status and its attendant obligations. People in Interest of P.D., 41 Colo.App. 109, 580 P.2d 836 (1978).

While we agree with petitioner that a guardian or custodian has the authority to make many decisions on behalf of the child, including the choice of a religion, we do not agree that the Court in Troxel held that the fundamental liberty interest in rearing children belongs to guardians as well as to biological parents. In dictum, the Court referred to the holdings in Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), and Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). However, these cases involved constitutional challenges to statutes concerning education; the former required attendance at a public school, and the latter banned the teaching of foreign languages to grade school students. And, while guardians were mentioned along with biological parents when the Court generally discussed the right to rear children and direct their education, the statutes at issue did not require a best interests inquiry or otherwise embody concerns directly and immediately affecting the emotional and physical well-being of a child to the same degree as those involved in custody determinations.

Consequently, we hold that the presumption giving custodial preference to the biological parent need not be accorded to a guardian.

II.

Petitioner also asserts that § 19-1-117 violates her right to equal protection under the United States Constitution. However, that argument is raised for the first time on appeal, and we will not consider it. See In re Marriage of Parsons, 30 P.3d 868 (Colo.App.2001).

III.

Finally, we disagree with petitioner’s contention that the trial court erred in denying her adoption petitions.

The standard for determining custody, guardianship, and adoption is the best interests and welfare of the child. People Interest of A.D., 706 P.2d 7 (Colo.App.1985). The best interests of the child are also the paramount consideration for terminating the parent-child relationship. See § 19—5—105(3.1)(3.2), C.R.S.2001; In re Custody of C.C.R.S., supra, 892 P.2d at 258 n. 25.

When evidence in the record supports the trial court’s findings that it is not in the child’s best interests to proceed with adoption, those findings are binding on appeal. In re Petition of J.A.A., 618 P.2d 742 (Colo.App.1980).

Here, the trial court correctly observed that intervenor would have no rights to seek visitation under § 19-1-117 if a decree of adoption were entered. See People in Interest of N.S., 821 P.2d 931 (Colo.App.1991). We need not decide whether that ground alone would be sufficient to prevent adoption here. The evidence was undisputed that the children needed contact with their father at some point, which would have been impossible if his parental rights were terminated. See § 19-5-211, C.R.S.2001; In re Adoption of T.K.J., 931 P.2d 488 (Colo.App.1996). The trial court acted within its discretion in denying the petitions to adopt on those bases.

Although there was some evidence that adoption by petitioner would be in the children’s best interests, the experts all agreed, as noted by the trial court, that visitation with intervenor also was in their best interests. Accordingly, denial of the petitions to adopt was consistent with the trial court’s resolution of the other issues before it.

We reject petitioner’s argument that the goal of permanency planning compels us to reach a contrary result. Petitioner already has permanent custody of the children, and we are satisfied that the level of permanency achieved here is appropriate under the circumstances. Further, the trial court’s order clearly provides that petitioner has the final decision-making authority with respect to the children’s religious training.

The orders are affirmed.

Judge DAVIDSON and Judge CASEBOLT concur.


author: Judge ROTHENBERG.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Dale E. CAMPBELL, Defendant-Appellant.
    No. 00CA1111.
    Colorado Court of Appeals, Div. IV.
    Sept. 26, 2002.

      Ken Salazar, Attorney General, Lauren Edelstein-Park, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Martin Gerra, Deputy State Public Defender, Denver, Colorado, for Defendant Appellant.
   Opinion by

Judge ROTHENBERG.

Defendant, Dale E. Campbell, appeals the judgment of conviction entered on a jury verdict finding him guilty of one count of securities fraud and one count of theft. We reverse and remand for a new trial.

I. Background

Defendant was charged with several counts of theft and securities fraud related to a scheme in which he promoted a seminar featuring a nationally known motivational speaker. The counts involving one of the victims were severed and tried separately and are the subject of this appeal.

In April 1999, defendant retained counsel who filed several pretrial motions on defendant’s behalf. That attorney requested and was granted two continuances of the motions hearing and the trial based on his assertions that he had inadequate time to prepare.

In December 1999, the attorney moved to withdraw based on a conflict of interest. The motion was granted without objection from the prosecutor, and shortly thereafter, defendant retained a second attorney. The court rescheduled the motions hearing for January 31, 2000, and the trial for March 13.

On January 24, a third attorney moved for a continuance of the motions hearing. On January 31, he appeared before the court and explained that he would be taking over defendant’s representation because the second attorney had unexpectedly left their law firm. The third attorney did not formally move for a continuance of the trial date at that time, but informed the court there could be a preparation problem and that “if at the motions hearing ... the Court allows the prior transactions in, we are going to need more time [to prepare for trial] because I wasn’t attorney of record for any of the other situations and some of them weren’t even charged. So there is going to be a lot of investigation before then.”

The prosecutor agreed to a continuance of the motions hearing, but objected to changing the trial date, contending defendant had a history of “engineering a conflict ... to get a continuance.” The trial court continued the motions hearing to February 23.

On February 23, the third attorney again moved for a continuance of the motions hearing, stating he was unprepared to go forward. The prosecutor strenuously objected, contending it was a delay tactic by defendant. The court denied the motion, proceeded with the hearing, and granted the prosecution’s request to introduce evidence of defendant’s 1983 theft conviction and his 1995 securities fraud and theft convictions. The court ruled inadmissible other similar transaction evidence.

On March 3, the third attorney moved to withdraw. He informed the court defendant had discharged him three days earlier and “a conflict [had] arisen between himself and [defendant] that [rendered] his appearance in this matter as detrimental to [defendant].”

On the same date, defendant filed a detailed pro se motion requesting an evidentia-ry hearing to determine whether the third attorney had represented him ineffectively. Defendant alleged, inter alia, that: (1) he had not hired this attorney, but was simply told he was taking over defendant’s case after the second attorney abandoned defendant’s representation without giving him proper notice; (2) the third attorney was having personal problems including the recent death of a child, and the law firm was experiencing serious problems; (3) the attorney had been absent from his office for an unknown amount of time and failed to return defendant’s phone calls; and (4) the attorney had little criminal law experience and was unprepared for the motions hearing. Defendant included with his motion a law directory profile the third attorney had sent to defendant, listing the attorney’s “practice areas” as “Civil Litigation; Securities; Bankruptcy; Real Estate; [and] Corporate Collections.”

The court held a brief hearing on the same day the motions were filed. The third attorney informed the court that defendant had terminated him and that he could no longer effectively represent defendant based on their lack of communication. After hearing the arguments of counsel and a brief statement by defendant, the court denied counsel’s motion to withdraw and defendant’s motion for an evidentiary hearing regarding ineffective assistance of counsel. The trial court stated:

[Defendant] and [the third attorney] appeared here on January 31, sought a continuance of the motions hearing that was set for that day and assured [the court] that [the defense] would be ready for trial on March 13th. And I think it was that day that [the prosecution] predicted that there would be something like this before the ... trial date. And [defendant has] been back at least once since then for the motions hearing. Nothing was mentioned about [defendant] being dissatisfied [with the third attorney]. As a matter of fact, [the third attorney] succeeded in getting a severance of counts for the trial.... I don’t see this as anything other than an effort to delay the trial.

Defendant and the third attorney continued to have difficulties communicating and on March 13, the attorney appeared before the court for trial and again moved to withdraw for the reasons previously stated. Defendant also addressed the court, advising it that he had fired the third attorney and “will have an attorney in this afternoon and will be finishing up on his appearance. [The fourth attorney] asked that I ask the Court for additional time ... based on his entering his appearance.”

Because of docket problems, the ease was transferred to another district court judge for trial and for resolution of these matters. After being informed of the situation, the trial court denied the motions, stating: “I see you’ve made that motion before and it’s been denied, so I’m not going to reconsider.”

The third attorney then asked the court to advise defendant “of what his rights are ... and what is involved in his defense and possibly advise him of his availability to waive counsel.” The court engaged in a brief colloquy with defendant during which defendant reiterated that, while he had hired the second attorney, he had not hired the third attorney. He also maintained that the third attorney was unprepared and was a civil attorney. Defendant insisted that he had fired the third attorney and said he had an appointment with another attorney that afternoon.

The third attorney made the following inquiry of the court: “Your Honor, if he wants to waive counsel, [do] I ... have to appear [at the trial] and he can represent himself’ (emphasis added). The court instructed the third attorney and defendant to return for trial on March 15.

On March 14, the third attorney filed a motion entitled “Reconsideration of Motion to Withdraw or, in the Alternative, Motion to Continue to Allow New Counsel to Enter His Appearance.” In that motion, the third attorney asserted that “[b]ased upon the record to date, the defendant has waived his right to counsel ” (emphasis added).

On March 15, when the parties and counsel appeared for trial, the court referred to the motion for reconsideration. The third attorney urged the court to reconsider its prior rulings, and advised it that the fourth attorney was willing to enter an appearance for defendant. Defendant also addressed the court personally and requested that the fourth attorney be permitted to represent him after a brief continuance. The prosecutor objected, and the trial court denied the motion to continue after being told the fourth attorney was not ready to proceed on that date.

The court then advised defendant pursuant to People v. Arguello, 772 P.2d 87 (Colo.1989), of the charges against him, of his rights, and of the perils of self-representation. During the advisement, the third attorney took the position that, “if defendant is not cooperative with defense counsel and actually terminates defense counsel and says he’s going to have new counsel for trial, in the event that new counsel becomes unavailable for trial, he’s waived his right to counsel ” (emphasis added).

Defendant responded orally to the court’s questions, but refused to sign the written advisement form confirming that he waived counsel. Defendant stated: “I would like to go on record protesting signing this advisement at this time based on the fact that I I did not hire this lawyer, once again, and he’s not my attorney.”

The trial court asked defendant whether he wanted the third attorney to represent him or he wanted to represent himself, stating: “That’s your choice in this trial.” Defendant answered: “My choice is to have [the fourth attorney] ... represent me.” The court responded: “That is not an option if [the fourth attorney] won’t try the case today. Now, there are two options: One, to go with [the third attorney]; or two, to represent yourself. So what is your choice?”

Defendant stated that he was not qualified to represent himself, that he wanted counsel but the third attorney was ineffective and could not represent him properly, and that he wanted the fourth attorney to represent him. During this colloquy, the third attorney asserted that “I think by his actions he’s waiving counsel ” (emphasis added).

When defendant refused to choose between proceeding to trial with the third attorney and self-representation, the court stated: “If you refuse to make the choice, I’ll make the choice.... The only thing I know to do is you fired [the third attorney], so I’m going to allow him to withdraw, and you can represent yourself” (emphasis added).

Upon the suggestion of the prosecutor, however, the court offered defendant the option of having the third attorney remain as advisory counsel and permitted defendant to consult privately by telephone with the fourth attorney. After that consultation, defendant proceeded to trial pro se with the third attorney as advisory counsel.

During its case-in-chief, the prosecution presented evidence that defendant had made an investment proposal to the victim concerning a seminar in Phoenix, Arizona, featuring a nationally known motivational speaker.

The victim testified that he invested $5,500 in the scheme, and that defendant told him he could expect profits of approximately $100,000. Defendant also guaranteed a twenty percent return on the investment if the seminar should fail, which defendant assured the victim had never happened. The seminar never occurred, and the victim testified that defendant stated the scheduled speaker was in a car accident. The victim received $1,100 back from defendant, but defendant failed to repay the principal amount invested.

The motivational speaker testified that he was never scheduled to speak in Phoenix and was not in a car accident.

The court also read a stipulation to the jury concerning defendant’s 1983 conviction that stated: “[0]n or about April 25, 1983, defendant was convicted in connection with $167,000 defendant received from a client in 1981.” No other evidence was admitted concerning this conviction. Defendant did not request a limiting instruction, and the court did not give one.

The two victims of the 1995 offense testified, as did the prosecutor’s investigator, about a similar scheme involving motivational seminars. Before these three witnesses testified, the court gave the jury a limiting instruction to which defendant did not object.

The prosecution also presented another witness whom defendant had solicited in 1998 to invest in a similar seminar. This witness testified, over defendant’s objection, that defendant had guaranteed a twenty percent return on his investment and had failed to disclose any information concerning his 1983 and 1995 felony convictions. Defendant objected to this testimony, arguing that he was not notified of the prosecution’s intent to introduce this misconduct.

II. Right to Counsel

Defendant contends the trial court denied him his constitutional right to counsel by requiring him to proceed pro se at trial. He maintains that because he did not expressly or impliedly waive his right to counsel or express any desire to proceed pro se, he was entitled to counsel. He further maintains that the trial court erred by making him choose between proceeding pro se or continuing to be represented by the third attorney, who had a conflict of interest with defendant. We agree with defendant that the third attorney created a conflict of interest when he took a legal position regarding the implied waiver of counsel adverse to defendant’s interests and that this legal position resulted in demonstrable prejudice to defendant.

A. Assistance of ConflicU-Free Counsel

A criminal defendant has a constitutional right to the assistance of counsel, U.S. Const, amend. VI; Colo. Const, art II, § 16, which includes the right to counsel of one’s choice, Tyson v. District Court, 891 P.2d 984 (Colo.1995), and the right to conflict-free counsel. People v. Martinez, 869 P.2d 519 (Colo.1994).

The total denial of the right to counsel constitutes structural error and is not subject to harmless error analysis. Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)(total deprivation of the right to counsel requires automatic reversal); Anaya v. People, 764 P.2d 779, 782 (Colo.1988)(“Evidence that a defendant was denied [the right to retain counsel of choice] arbitrarily and without adequate reason is sufficient to mandate reversal without a showing of prejudice. Basic trust between counsel and defendant is the cornerstone of the adversary system and effective assistance of counsel.”)(quoting Linton v. Perini, 656 F.2d 207, 211-12 (6th Cir.1981)).

An accused who desires and is financially able to secure counsel of his or her own choice should be afforded a fair opportunity to do so, Anaya v. People, supra; see Rodriguez v. District Court, 719 P.2d 699 (Colo.1986), and defendants who retain then-own lawyers are entitled to the same protection under the Sixth Amendment as defendants with court-appointed counsel. See Mickens v. Taylor, 535 U.S. 162, 122 S.Ct. 1237, 152 L.Ed.2d 291, n. 2 (2002); Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980).

B. Express or Implied Waiver

A defendant may expressly or impliedly waive the right to counsel, North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979); King v. People, 728 P.2d 1264 (Colo.1986). However, waiver of the right to counsel must be made voluntarily, knowingly, and intelligently based on the circumstances of each case. People v. Arguello, supra; see North Carolina v. Butler, supra. The prosecution bears the burden of establishing the waiver is valid, Tyson v. District Court, supra, and the court should indulge every reasonable presumption against finding a waiver. Any doubts should be resolved in favor of the defendant. People v. Arguello, supra.

Waiver of a constitutional right usually takes the form of an express statement by the defendant, but it may be implied if “the record as a whole ... show[s] that the defendant knowingly and willingly undertook a course of conduct that evinces an unequivocal intent to relinquish or abandon his right to legal representation.” King v. People, supra, 728 P.2d at 1269. But “there must be ample, unequivocal evidence in the record that the defendant was advised properly in advance of the consequences of his actions.” People v. Arguello, supra, 772 P.2d at 97.

In People v. Arguello, supra, the defendant refused the services of the public defender’s office, and the court appointed another attorney to represent him. When the defendant expressed dissatisfaction with this attorney, the trial court substituted another attorney to represent him.

The defendant later asked the court to excuse the second appointed attorney. Before excusing this attorney, the court warned the defendant he needed to proceed with this attorney or would have to represent himself. Several days later on the first scheduled trial date, the defendant informed the court that the second appointed attorney would not represent him, that he did not want to proceed pro se, and that he wanted to plead not guilty by reason of an impaired mental condition. The court postponed the trial date to conduct a competency examination, after which the defendant requested that the second appointed attorney represent him.

However, this attorney filed a motion to withdraw because of an alleged conflict, and the court granted the motion. “A heated exchange followed, with [the defendant] directing a stream of profanity at the judge which continued for eight pages of the transcript. [The defendant] resisted the sheriffs attempts to subdue him, and the judge held him in contempt.” People v. Arguello, supra, 772 P.2d at 90. Although the defendant apologized for the outburst, the court denied or ignored the defendant’s later requests for counsel.

The supreme court stated:

[The defendant’s] conduct taken as a whole — his repeated requests for change of attorneys without good cause, his non-cooperation with his attorneys, his dilatory tactics, and the prolonged verbal abuse he directed at the judge when he was denied a change of counsel — could amount to a “voluntary” waiver of his right to counsel.

People v. Arguello, supra, 772 P.2d at 96.

Nevertheless, the supreme court ordered a new trial, concluding the defendant’s conduct did not constitute a valid implied waiver of his right to counsel because the trial court had failed to warn him adequately of the consequences of his actions and of the dangers and difficulties of representing himself. People v. Arguello, supra.

Ordinarily, the request for new counsel is not an implied waiver of the right to counsel, although an unreasonable request or a request without good cause may lead to a waiver. People v. Mossmann, 17 P.3d 165 (Colo.App.2000). Good cause includes a conflict of interest, a complete breakdown of communication, or an irreconcilable conflict. If the trial court finds good cause does not exist, it can insist that the defendant choose between continued representation by counsel and pro se appearance.

The court must give the defendant a clear choice between counsel and a waiver. People v. Mossmann, supra. Further, before the court permits a waiver of counsel, the defendant “should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ ” Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2542, 45 L.Ed.2d 562, 582 (1975).

C. Waiver of Conflict

In addition, an accused may knowingly, intelligently, and voluntarily waive the right to conflict-free counsel. When the trial court is on notice of a conflict, it has a duty to inquire into the propriety of continued representation by current counsel. People v. Edebohls, 944 P.2d 552 (Colo.App.1996); see also Allen v. District Court, 184 Colo. 202, 206, 519 P.2d 351, 353 (1974)(“Whenever a motion to withdraw is filed on the grounds that a conflict of interest may exist ... the trial judge must conduct a hearing to determine if a conflict of interest ... requires that counsel withdraw.”):

Here, the third attorney recognized he had a potential conflict with defendant by March 3, when he moved to withdraw and informed the court “a conflict [had] arisen between himself and [defendant] that [rendered] his appearance in this matter as detrimental to [defendant].” See People v. Castro, 657 P.2d 932 (Colo.1983)(counsel has a duty to advise the defendant or the court of the conflict and plainly describe how the conflict may affect his or her effective representation of the defendant; defense counsel should state on the record the potential conflict of interest and advise the court that disclosures as complete as possible have been made to the defendant).

1. Duty of Court to Inquire

Once the potential conflict of interest between defendant and the third attorney became apparent, the trial court had a duty to inquire into the propriety of continued representation by the attorney, but failed to do so. Mickens v. Taylor, supra; People v. Edebohls, supra; cf. Allen v. District Court, supra; People v. Mossmann, supra. Although the trial court had earlier determined the third attorney was providing effective assistance of counsel, the court made no inquiry regarding the third attorney’s asserted conflict of interest.

The record also reflects that two days before the trial was to begin, the third attorney asked the court for permission not to appear with defendant on the day of trial. Further, on the day before trial and at the commencement of the trial, the third attorney volunteered to the trial court three times that defendant had waived his right to counsel. These representations were made by the third attorney despite the fact that defendant had never expressly waived the right to counsel, but had continuously informed the court that he did not want to represent himself and that substitute counsel was willing to represent him.

Nor can defendant be deemed to have forfeited his right to counsel by his actions, as the third attorney urged the court to conclude. Unlike the circumstances in People v. Arguello, supra, and People v. Rocha, 872 P.2d 1285 (Colo.App.1993), where the defendants engaged in obstreperous behavior, defendant here was consistently respectful of the tidal court, and under these circumstances, we do not construe his action in objecting to representation by the third attorney as an implied waiver of counsel.

Because the only arguable waiver of the right to counsel had to be implied, we agree with defendant that the third attorney’s repeated assertions to the court that defendant had waived counsel were palpably adverse to his interests, and likely influenced the trial court’s conclusion that defendant had waived counsel. As a result of the trial court’s ruling, defendant here was forced to choose between the third attorney and proceeding pro se, and ended up without counsel in a felony case. Hence, he suffered significant prejudice from the third attorney’s representations to the court. See Mickens v. Taylor, supra (although there is no per se rule requiring reversal if trial court fails to inquire into counsel’s conflict of interest, reversal is required if the defendant shows a conflict of interest that adversely affects counsel’s representation); People ex rel. Peters v. District Court, 951 P.2d 926, 930 (Colo.1998)(“[A]n attorney is obliged to maintain a paramount duty of loyalty to the client.”); People v. Mossmann, supra; People v. Edebohls, supra.

2. Choosing Between Constitutional Rights

Requiring a defendant to choose between constitutional rights may also create an untenable position because the defendant must exercise one right at the unnecessary expense of another. The Colorado Supreme Court has described such a choice as creating “an intolerable tension between two constitutional rights.” People v. Chavez, 621 P.2d 1362, 1365 (Colo.1981).

For example, in Gilbert v. Lockhart, 930 F.2d 1356 (8th Cir.1991), the defendant was represented by appointed counsel. On the morning of trial, his counsel moved for a continuance, stating he was unprepared because he had not met with the defendant until that morning and the defendant had just given him the name of an alibi witness. After the trial court denied the continuance, the defendant requested new counsel based on current counsel’s assertion that he was unprepared. The court denied the request and offered the defendant the option of proceeding pro se or with his counsel. The defendant opted to represent himself and was convicted. On appeal, the court held the defendant’s right to counsel was violated because the trial court had given defendant an intolerable choice of proceeding to trial with allegedly unprepared counsel or no counsel at all.

Other jurisdictions also have held that requiring a defendant to proceed pro se after he or she has alleged that current counsel is ineffective, without further inquiry by the court, violates the defendant’s right to counsel and necessitates a new trial. See Wright v. State, 32 Md.App. 60, 359 A.2d 1 (1976); Commonwealth v. Cavanaugh, 371 Mass. 46, 353 N.E.2d 732 (1976); Privett v. State, 635 S.W.2d 746 (Tex.App.1982).

In Commonwealth v. Cavanaugh, supra, the Supreme Judicial Court of Massachusetts characterized as “unacceptable” a defendant’s choice between proceeding pro se and being represented by allegedly ineffective counsel:

On the one hand, [the defendant] could proceed to trial represented by counsel who characterized himself as “unprepared”; on the other, [the defendant] could demonstrate his justifiable concern about that state of affairs only by proceeding to trial pro se. To argue that proceeding to trial, with consulting counsel who felt he was not adequately prepared, amounted to a knowing and intelligent waiver is to suggest that a defendant may only reserve his rights on the issue by refusing to go to trial at all, or by remaining entirely silent throughout the trial.

Commonwealth v. Cavanaugh, supra, 353 N.E.2d at 737 (footnotes omitted). But see German v. State, 268 Ind. 67, 373 N.E.2d 880 (1978)(the defendant’s waiver of the right to counsel was valid even though the defendant expressed dissatisfaction with counsel and requested substitution); People v. Longuemire, 77 Mich.App. 17, 257 N.W.2d 273 (1977)(same); State v. Gibson, 45 Ohio St.2d 366, 345 N.E.2d 399 (1976)(same).

There is a significant relationship between conflicts of interest by counsel and the effective assistance of counsel. See People v. Kenny, 30 P.3d 734, 744 (Colo.App.2000)(discussing relationship between conflicts of interest and effective assistance of counsel, and stating that “[I]f trial counsel’s ability to represent a defendant is materially limited by his or her own interests, a defendant may be deprived of the right to effective representation of counsel.”).

Here, the trial court was faced with a frustrating situation. Defendant was arraigned in February 1999, and a jury trial was set for June 1999. At defendant’s request, the trial had been continued twice, to November 1999 and later to January 2000, and the prosecution had not objected to either continuance. The court also had continued the case on its own motion a third time to March 13, 2000. During this time, three different attorneys had represented defendant, and shortly before trial he had expressed his intention to retain a fourth attorney. Thus, we fully comprehend why the court was unwilling to grant defendant another continuance. See People v. Outlaw, 998 P.2d 20 (Colo.App.1999)(court has discretion whether to grant the attorney’s motion to withdraw, allow a continuance, appoint substitute counsel when a conflict is alleged), rev’d on other grounds, 17 P.3d 150 (Colo.2001); People v. Rocha, supra.

Nevertheless, defendant never expressly waived his right to counsel or his right to conflict-free counsel. To the contrary, he repeatedly told the trial court he wanted and needed a lawyer and did not want to represent himself. And, contrary to the contentions of the prosecutor, the frequent changes of counsel cannot fairly be characterized as delay tactics by defendant. The first attorney defendant retained had a conflict of interest and could not proceed, and his second attorney abandoned his representation, leaving it to the third attorney, whom he did not retain.

This case may be contrasted with People v. Haynie, 826 P.2d 371 (Colo.App.1991), in which the trial court held several hearings to resolve the defendant’s objection to court-appointed counsel. Following one of the hearings, the trial court specifically found the public defender’s representation to be competent and further found that the defendant had not established good cause to dismiss the public defender. One week after defendant was given an Arguello advisement and a clear choice between proceeding pro se or with the public defender, he informed the court he would “proceed pro se with advisory counsel.” People v. Haynie, supra, 826 P.2d at 375.

Here, however, there was no express waiver by defendant, and we conclude the record does not support an implied waiver.

In summary, while we acknowledge that a vexing set of circumstances confronted the court, we conclude that: (1) defendant did not expressly or impliedly waive his right to counsel or express any desire to proceed pro se, and therefore was entitled to counsel; (2) the representations made by the third attorney that defendant had implied waived counsel created a conflict of interest that adversely affected his representation of defendant; (3) once the conflict of interest became apparent, the trial court failed to inquire further into the matter; and (4) the trial court gave defendant the unacceptable choice of waiving his right to counsel entirely and proceeding pro se, or waiving the right to conflict-free counsel by having the third attorney represent him.

Accordingly, the trial court’s ruling requiring defendant to proceed pro se totally deprived him of his constitutional right to counsel, and he is entitled to a new trial.

Given our resolution.of the issue, we need not address defendant’s contention that he had inadequate time in which to prepare his defense.

III. Remaining Issues

Because certain of the remaining issues presented by defendant are likely to arise on remand, we address them here.

A. Similar Transaction Evidence

Defendant contends the trial court abused its discretion in its pretrial ruling admitting evidence of defendant’s 1983 and 1995 convictions and other misconduct evidence. We disagree.

Initially, we clarify that the trial court ruled on this evidence before the conflict of interest arose between defendant and the third attorney, but after the court had rejected defendant’s pro se motion alleging that he had not hired the third attorney and that the third attorney lacked the criminal law experience necessary to represent him effectively.

The trial court found that the third attorney had entered his appearance, that defendant had appeared before the court twice, and “[n]othing was mentioned about [defendant] being dissatisfied [with the third attorney],” and that the third attorney had succeeded in getting a severance of counts for the trial. Thus, the record reflects no ineffective assistance of counsel at the time of the court’s pretrial rulings that would require such rulings to be vacated.

At the pretrial hearing, the prosecutor stated two separate grounds for admitting the evidence of defendant’s prior convictions: (1) to show “motive, opportunity, intent, preparation, plan, knowledge, lack of mistake and identity pursuant to CRE- 404(b)”; and (2) as “direct evidence of [defendant’s guilt and intent.” In support of the second ground, the prosecution argued that defendant’s failure to disclose his prior convictions to the victim' was a material omission establishing deception, which is an element of theft by deception and securities fraud. See § 18-4-401(1), C.R.S.2002 (defining elements of theft to include “knowingly obtaining] or exercising] control over anything of value of another ... by ... deception”); § 11 — 51— 501(l)(b), C.R.S.2002 (defining elements of securities fraud to include “omit[ting] to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading”).

Whether to admit similar transaction evidence is within the discretion of the trial court, and we will not disturb its determination absent an abuse of that discretion. See People v. Rath, 44 P.3d 1033; People v. Vialpando, 954 P.2d 617 (Colo.App.1997). An abuse of discretion occurs only if the trial court’s ruling is manifestly arbitrary, unreasonable, or unfair. People v. Pineda, 40 P.3d 60 (Colo.App.2001).

Evidence of other crimes committed by a defendant is admissible under certain circumstances, as set forth in CRE 404(b). People v. Miller, 890 P.2d 84 (Colo.1995).

CRE 404(b) provides:

Evidence of other crimes, 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.

To introduce evidence under CRE 404(b), the prosecution must establish by a preponderance of the evidence that the other crime or act occurred and that the defendant committed it. People v. Rath, supra; People v. Garner, 806 P.2d 366 (Colo.1991). Such evidence is admissible only if: (1) the evidence relates to a material fact; (2) the evidence is logically relevant; (3) the logical relevance of the evidence does not depend on an intermediate inference that the defendant has a bad character, which would be employed to support a further inference that the defendant acted in conformity with his bad character; and (4) the probative value of the evidence is not substantially outweighed by its prejudicial impact. People v. Spoto, 795 P.2d 1314 (Colo.1990).

However, the trial court may properly admit the evidence under another evi-dentiary theory without complying with the procedural safeguards required by CRE 404(b). People v. Rivera, 56 P.3d 1155 (Colo.App.2002) (holding that in a securities fraud case, the defendant’s prior misconduct was admissible because it was information that should have been disclosed to investors).

1. The 1983 Conviction

Defendant’s 1983 conviction was for theft by fraud of money. Although this conviction occurred fifteen years before the acts charged here, it concerned a crime of dishonesty committed against a client.

We perceive no abuse of discretion in the trial court’s determination that the evidence was probative of defendant’s intent to defraud the victim here. A reasonable investor would have considered such a conviction highly relevant in deciding whether to entrust funds to defendant, and it showed defendant’s knowledge of prior misconduct that should have been disclosed to the victim. See People v. Rivera, supra.

Nor are we persuaded by defendant’s contention that the probative value of the 1983 conviction was substantially outweighed by its prejudicial effect.

2. The 1995 Conviction

The 1995 conviction for theft and securities fraud resulted from defendant’s guilty plea on charges relating to defendant’s offering and selling of an investment opportunity in a seminar in Scottsdale, Arizona. That seminar purported to feature the same person who was to speak here. That seminar never took place, and defendant did not return the money to the victims.

The trial court admitted evidence of the 1995 conviction as part of the res gestae “because the [prosecution’s] theory is that the defendant should have disclosed [the pri- or conviction] to [the victim], and [the prosecution is] going to be unable to prove that element of the case if they can’t bring in evidence of the conviction and the transaction underlying the conviction.” As an additional ground for admitting this evidence, the court found that it satisfied CRE 404(b) and the Spoto test because it showed “defendant’s mental state or intent, ... lack of mistake, common plan or scheme and motive.” The court further found that “the prejudicial effect of the evidence [did] not outweigh its probative value.”

Defendant contends evidence concerning the 1995 conviction was not admissible under CRE 404(b) because it did not show a common plan or scheme, but was “pure propensity evidence.” However, evidence of a prior conviction does not have to be part of the sequence of events leading to the commission of the crime charged to qualify as evidence of a common plan. See People v. Collie, 995 P.2d 765 (Colo.App.1999)(where defendant was charged with theft and conspiracy to commit theft relating to a scheme to defraud homeowners, the court did not abuse its discretion in admitting evidence of a similar theft conviction); People v. Delgado, 890 P.2d 141 (Colo.App.1994).

In any event, the evidence of the 1995 conviction also relates to a material fact because it showed defendant intended to defraud the victim and knew of material information he failed to disclose, which is an element of theft by deception and securities fraud. See People v. Rivera, supra.

Such evidence also is logically relevant and its relevance is independent of the intermediate inference of bad character. The two motivational seminar schemes demonstrated a common plan, intent, and knowledge, which are permissible purposes for admitting such evidence under CRE 404(b), and the similarities between the acts underlying the 1995 conviction and the charged acts increase the probative value.

Accordingly, we conclude the trial court did not abuse its discretion in its pretrial ruling allowing the prosecution to introduce this evidence.

B. Limiting Instruction

On remand, when admitting evidence of other crimes, the trial court should contemporaneously instruct the jury regarding the limited purpose for which the evidence is being received and for which the jury may consider it. The court also should repeat this instruction in the general instructions to the jury at the close of the evidence. See People v. Garner, supra.

Although the model jury instructions do not contain an exact instruction addressing similar transaction evidence, they contain a general instruction concerning evidence admissible for a particular purpose. That instruction, CJI-Crim. 2:02 (1983), provides in relevant part:

Certain evidence may be admitted for a particular purpose only, and for no oth-er_ [The witness’] testimony ... you are about to hear ... is such evidence. It may be used as evidence for the purpose of showing [insert purposes for which it was admitted] and you should consider it as evidence for no other purpose.

Here, the trial court read the following limiting instruction before any witness testified about the 1995 conviction:

The evidence you are about to hear is admitted for the limited purpose of showing defendant’s knowledge, especially knowledge of facts not disclosed to investors, intent, common plan, scheme, or design, method of practice, and absence of mistake. You are instructed that you should not consider it for any purposes other than the limited purposes for which it is admitted.

(Emphasis added).

Defendant asserts that the court erred in including “method of practice” because it is not one of the purposes enumerated in CRE 404(b)(stating that evidence of other crimes, wrongs, or acts may be admissible for other purposes, “such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident”).

However, the supreme court has recently clarified that CRE 404(b) “enumerates several examples of reasons for which evidence of other crimes may be admissible,” and that “there are numerous other uses to which evidence of criminal acts may be put and those enumerated [in the rule] are neither mutually exclusive nor collectively exhaustive.” People v. Rath, supra, 44 P.3d at 1038 (quoting 1 Charles T. McCormick, McCormick on Evidence § 190, at 659 (John W. Strong, 5th ed.1999)).

Nevertheless, because “method of practice” is analogous to a “common plan, scheme, or design,” its inclusion in the instruction was unnecessary. On remand, the better practice would be to omit this language from the limiting instruction.

C. Securities Fraud Instructions

We next address defendant’s contention that the trial court gave the jury faulty instructions defining two elements of securities fraud: investment contract and material fact. We conclude that, on remand, the instructions should be rephrased.

Section 11-51-501(1) pertains to the fraudulent offer, sale, or purchase of a “security,” which includes “investment contracts.” See § 11-51-201(17), C.R.S.2002. Under Colorado law, a “security” includes an “investment contract” covered under the Securities Act of 1933. Feigin v. Digital Interactive Associates, Inc., 987 P.2d 876 (Colo.App.1999).

A division of this court recently stated that “[a]n investment contract under the Securities Act of 1933 means a contract, transaction, or scheme by which a person (1) invests his or her money (2) in a common enterprise (3) with the expectation of profits from the efforts of others.” Joseph v. Viatica Management, LLC, 55 P.3d 264 (Colo.App.2002). The division in Viatica Management explained that “[t]hese third-party efforts must be significant, that is, essential managerial efforts that affect the success or failure of the enterprise.”

One means of committing securities fraud is to omit to state a “material fact.” Section 11-51-501(1). Although not defined by the statute, the Colorado Supreme Court has stated that “[a] misrepresented or omitted fact is considered material ... if there is a substantial likelihood that a reasonable investor would consider the matter important in making an investment decision.” Goss v. Clutch Exchange, Inc., 701 P.2d 33, 36 (Colo.1985).

Here, the trial court instructed the jury that an “ ‘[investment contract’ means (1) an investment of money; (2) in a common enterprise[;] (3) with the expectation of profit; [ (4) ] based upon the essential managerial efforts of the promoter or of a third party.” The court further instructed the jury that a “Material fact (or omission)” is “a fact that would be of some importance or significance in the decision making process of a reasonable investor, rather than a fact which merely involves a minor or trivial detail.”

We do not decide whether these instructions would have required reversal. However, on remand, the trial court should formulate its instructions based upon the standards set forth in Goss v. Clutch Exchange, Inc., supra, and Joseph v. Viatica Management, LLC, supra.

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

Judge NEY and Judge VOGT concur.


author: Judge DAILEY.

text:
    CITY AND COUNTY OF DENVER, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE of the STATE of Colorado and Michelle Felix, Respondents.
    No. 02CA0322.
    Colorado Court of Appeals, Div. IV.
    Sept. 26, 2002.

      J. Wallace Wortham, Jr., City Attorney, Olivia L. Hudson Smith, Assistant City Attorney, Denver, Colorado, for Petitioner.
    No Appearance for Respondent Industrial Claim Appeals Office.
    Michelle Felix, Pro Se.
   Opinion by

Judge DAILEY.

The main issue in this workers’ compensation case is whether an employer is entitled to recoup lump sum disability benefits already paid to a claimant where the claim is reopened for a worsened condition, the claimant obtains additional treatment resulting in a lower impairment rating, and she requests a division-sponsored independent medical examination (DIME) resulting in a zero percent impairment rating. Under the circumstances of this case, we conclude that the employer is not entitled to repayment and therefore affirm the order of the Industrial Claim Appeals Office (Panel) denying that request of the City and County of Denver (employer). We also affirm the Panel’s order awarding Michelle Felix (claimant) ongoing medical benefits after maximum medical improvement (MMI).

Claimant injured her back in a compensa-ble automobile accident in 1998. The treating physician placed her at MMI in 1999 with a medical impairment rating of twenty-six percent of the whole person. In accordance with this rating, employer filed a final admission of liability for permanent medical impairment benefits, claimant received the award in a discounted lump sum, and the claim was closed.

After the treating physician prescribed additional treatment, claimant filed a petition to reopen based on a worsened condition. The Administrative Law Judge (AL J) granted the reopening and awarded additional temporary total disability and medical benefits.

Claimant received additional treatment, and in 2000, a treating physician again placed her at MMI, this time with only a nine percent whole person impairment rating. Relying on this reduced rating, employer filed a final admission of liability claiming an “overpayment” of $23,412, based on the difference between the twenty six and nine percent whole person impairment ratings.

Claimant challenged the decreased impairment rating by requesting a DIME on that issue. The DIME physician rated claimant’s impairment at zero percent based on his opinion that the “impact in a motor vehicle accident of this nature is not severe enough to cause injury to any occupants of the motor vehicle.” In support, the DIME physician cited “several other cases that [he] ha[d] had in which engineering reports have indicated that it is impossible to injure the cervical or lumbar spine[ ] or extremities in such a minimal impact collision.” Based on this report, employer filed another final admission of liability increasing the claim for overpayment to $43,312.

Claimant applied for a hearing to challenge employer’s assertion of an overpayment based on the DIME rating. She also requested both ongoing medical treatment after MMI and increased disability benefits, but at the hearing abandoned the request for increased disability benefits.

The ALJ found no persuasive evidence that the minimal treatment and evaluations provided after reopening resulted in any improvement in claimant’s degree of permanent impairment. Further, the ALJ found that the physicians giving the nine and zero percent ratings simply expressed a difference of opinion with the original treating physician concerning claimant’s degree of impairment.

Concluding that claimant “did not improve to a lesser degree of permanent impairment after her case was reopened,” the ALJ rejected employer’s contention that it is entitled to recover an overpayment. The ALJ also found, based on the opinion of the physician who rendered the nine percent rating, that claimant is entitled to ongoing medical benefits after MMI. The Panel affirmed.

I.

Employer contends that the ALJ erroneously required it to prove that claimant’s condition improved. Employer argues that to prove that there was no overpayment, claimant should bear the burden of overcoming, by clear and convincing evidence, the DIME physician’s opinion of no impairment. Employer asserts that claimant failed to overcome the DIME opinion under this standard, therefore she is bound by the zero percent impairment rating, and employer is automatically entitled to recoup the “overpaid” lump sum benefits. We disagree.

After a case is reopened based on a change in condition, the causation issue is limited to whether there is a change in the claimant’s physical or mental condition that can be causally connected to the original compensable injury. See Cordova v. Indus. Claim Appeals Office, 55 P.3d 186 (Colo.App.2002). The original finding of causation has already been conclusively litigated and therefore cannot be challenged in reopening or post-reopening proceedings. See 8 Larson’s Workers’ Compensation Law § 131.03(2)(a) (2001) (reopening based on a change in condition does not permit relitigation of every potential issue because the question is restricted to the “extent of improvement or worsening of the injury on which the original award was based”; “neither party can raise original issues such as work-connection, employee or employer status, occurrence of a compensable accident, and degree of disability at the time of the first award”); cf. Sunny Acres Villa, Inc. v. Cooper, 25 P.3d 44, 45 (Colo.2001) (causation established at temporary disability stage could be relitigated at permanent disability stage, because employer did not have same incentive to fully litigate causation at first stage).

Thus, the change must be measured from claimant’s condition when the claim was closed, as established in the original proceeding, and to her condition after reopening.

Here, the DIME physician addressed only the original causation issue. However, that issue had already been resolved differently, and the earlier resolution was no longer open to question. Because the DIME physician’s zero percent impairment rating was legally unfounded, it was inadmissible as proof of employer’s entitlement to an overpayment.

The ALJ correctly recognized that employer had the burden of proving its entitlement to an overpayment in the first instance. See Cowin & Co. v. Medina, 860 P.2d 535, 538 (Colo.App.1992)(burden of proof rests upon the party asserting the affirmative of a proposition; therefore, consideration should be given to which party would prevail in the absence of any evidence upon the subject). Employer affirmatively relied upon the DIME physician’s zero percent rating to claim such entitlement. However, because the DIME physician’s opinion was insufficient and inadmissible to prove that claimant’s condition improved after the reopening, the ALJ did not err in finding that employer failed to meet its initial burden of proof.

Accordingly, the burden never shifted to claimant to overcome employer’s evidence. See Johnson v. Indus. Comm’n, 761 P.2d 1140, 1146 (Colo.1988)(burden shifted to claimant only when prima facie case of overpayment was established).

Nor are we convinced that employer is entitled to reimbursement for an overpayment based on the nine percent rating issued by the treating physician. The ALJ specifically found that there was no improvement of claimant’s condition after the reopening and that the nine percent rating simply indicated a difference of opinion between physicians. This finding is within the ALJ’s province, and inasmuch as it is supported by the evidence, we will not disturb it. See Kroupa v. Indus. Claim Appeals Office, 53 P.3d 1192 (Colo.App.2002)(the ALJ resolves conflicts in the evidence, makes credibility determinations, determines the weight to be accorded to expert testimony, and draws plausible inferences from the evidence).

II.

Employer next contends that claimant is not entitled to medical benefits after MMI because she testified that she does not need them now and only wants the option of receiving treatment in the future. Employer asserts that this speculative evidence is insufficient to establish that the benefits are reasonably necessary. We decline to address this issue.

Employer did not raise this specific argument before the Panel. In its brief to the Panel, employer argued that claimant was not entitled to medical benefits after MMI because, as stated by the DIME physician, claimant did not sustain any injury from the automobile accident. Employer’s current argument, that the need for benefits was speculative, was not encompassed in the causation argument raised before the Panel. Thus, this issue may not be raised now on appeal. See City of Durango v. Dunagan, 939 P.2d 496, 500 (Colo.App.1997).

The order is affirmed.

Judge DAVIDSON and Judge VOGT concur.