author: Judge KAPELKE. Judge METZGER

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Joseph C. FROST, Defendant-Appellant.
    No. 96CA0013.
    Colorado Court of Appeals, Div. I.
    Sept. 2, 1999.
    Rehearing Denied Oct. 28, 1999.

    Certiorari Granted June 19, 2000.

      Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, John J. Fuerst III, Assistant Attorney General, Denver, Colorado, for Plaintiff-Ap-pellee.
    David F. Vela, Colorado State Public Defender, Karen M. Gerash, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

       Metzger, J., would GRANT.

       Justice RICE and Justice COATS do not participate.

   Opinion by

Judge KAPELKE.

Defendant, Joseph C. Frost, appeals the judgments of conviction entered upon jury verdicts finding him guilty of sexual assault on a child, aggravated incest, and two counts of habitual criminal, We reverse and remand for a new trial.

Defendant was charged based on allegations involving his niece. The victim had made statements indicating that defendant had sexually assaulted her, and her brother said that he had witnessed the incident.

Because the victim was four years old and her brother was seven at the time of trial, the court held a competency hearing pursuant to § 18-90-106, C.R.S.1998. The court found that both children were competent and available to testify. After additional hearings, the court also held that out-of-court statements of the children were admissible pursuant to § 13-25-129, C.R.$.1998.

Defendant moved for pre-trial discovery of Department of Social Services (DSS) and Fort Morgan Mental Health Institute (FMMHI) records. Following an in camera review of the records, the trial court granted defendant's motion in part and released a portion of the records. The court found that the remainder of the documents were irrelevant.

Finally, the prosecution was allowed to introduce evidence of defendant's prior sexual assault on another one of his nieces as res gestae of the charged offenses and pursuant to CRE 404(b). The convictions here at issue followed.

I.

Defendant contends that he was denied a fair trial by the admission of testimony regarding a prior sexual assault for which he had been previously convicted. We agree.

Although it had not previously filed a motion on the issue, on the first day of trial, the prosecution filed a handwritten motion to admit evidence of a prior sexual assault by defendant as part of the res gestae of the offense and under the "other purposes" language of CRE 404(b). The prosecution generally argued that defendant's sexual assault of the victim's cousin, which had occurred almost fifteen years prior to the charged offenses, was so intertwined with all the testimony that its admission was necessary for the jurors to understand the testimony and the relationships among the parties.

In its ruling, the trial court concluded that evidence relating to the prior sexual assault was admissible as part of the res gestae of the charged offenses. In addition, after conducting the four-part test set out in People v. Garner, 806 P.2d 366 (Colo.1991), the court concluded that statements relating to the prior assault were also admissible under CRE 404(b) "to explain a number of things that have gone on in this case, as has already been testified to by a number of witnesses."

During trial, the cousin, who was the vice-tim of the prior abuse, testified that she witnessed defendant having an "outburst" during which he stated that he had raped the current victim and also had thought about raping the cousin. She stated that when she later confronted defendant about the outburst, he denied making the remark, called her a liar, and indicated that he had been referring to another man who had raped her. The cousin then responded, "I told him that there was never any other guy, that the only person that ever did anything like that to me was him." She then stated that defendant had sexually assaulted her when she was approximately four or five years old.

Later in her testimony, the cousin also recounted how the victim of the current charges had told her of being assaulted by defendant and had then asked her, "Did [defendant] hurt you too?" and after she responded that he had, the current victim had said, "It's seary, huh?"

In addition, a police detective testified that, during an interview with defendant, defendant admitted to sexually violating the prior victim when she was four or five years old and that he thought the prior vietim had forgiven him and was "doing okay."

The People essentially concede that the evidence regarding the prior sexual assault was not res gestae evidence. We agree. The prior sexual assault of the prior victim had taken place in 1985, and the conversations at issue here all took place several months after the date of the alleged assault. Under these cireumstances, it cannot be said that the evidence is "contemporaneous with and serves to illustrate the character of the crime charged." People v. Rollins, 892 P.2d 866, 872 (Colo.1995).

The People urge, however, that the evidence was properly admitted under CRE 404(b). We are not persuaded.

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 to proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." CRE 404(b).

The prosecution must articulate a precise hypothesis by which a material fact can be permissibly inferred from the prior act independent of the use forbidden by CRE 404(b). People v. Spoto, 795 P.2d 1314 (Colo.1990).

Trial courts have substantial disceretion in determining the admissibility of similar transaction evidence, and a reviewing court will not overturn that ruling absent a showing of an abuse of discretion. People v. Gibbens, 905 P.2d 604 (Colo.1995).

Here, the prosecutor did not indicate that she sought admission of the prior act evidence for any of the specific limited purposes set forth in CRE 404(b). Nor did she actually articulate a precise hypothesis for the admission of the prior act evidence. She simply argued generally that the prior act evidence was necessary to enable the jury to understand all the testimony.

However, we can find no basis for concluding that such evidence was in fact needed for the jury to understand any relevant aspect of this case. Further, even if the other components of the Spoto test were met, under the cireumstances here, the unfair prejudicial effect of such evidence would substantially outweigh the probative value, which appears marginal at best.

For example, the victim's cousin could have testified about the victim's account of the sexual assault without mentioning the victim's inquiry about whether defendant had also hurt the cousin. Similarly, defendant's statement to the detective could have been presented without inclusion of the references to defendant's prior sexual assault on the victim's cousin. Finally, the cousin's alleged statement to defendant that he was the only one who had ever raped her was not needed for an understanding of the comments defendant himself had made.

In each instance the information relevant to the charged offense was readily understandable on its own, and there was simply no necessity for the evidence relating to defendant's prior criminal conduct.

In addition, we are not persuaded that information regarding the prior sexual assault on the cousin was somehow needed in order for the jury to understand either the living arrangements in the household or the relationships among the parties. In fact, the evidence was neither offered nor admitted to show any "context" for relevant evidence in this regard.

We also note that, although the court said it would allow the evidence of the prior assault only for the limited purpose of assisting the jury in understanding other evidence, even in opening statement the prosecutor stated that "approximately ten years ago, the Defendant sexually assaulted [the cousin]...." Defendant's objection to the comment was overruled. In closing argument, the prosecutor again stated that the cousin "had been a victim of sexual assault" by defendant. Thus, the use of the evidence in fact went beyond mere presentation of a context.

In Callis v. People, 692 P.2d 1045, 1052 (Colo.1984), the supreme court discussed the admissibility of references to prior criminal conduct appearing in an accused's custodial statement to police. The court indicated that the appropriate inquiry in determining admissibility is "whether the reference to other offenses has independent relevancy to the charges and, if not, whether this reference can be eliminated without significantly impairing the substantive content of those parts of the statement otherwise admissible." In addition, the court noted that references to prior criminality not otherwise admissible must be excised or deleted "unless such excision would significantly impair the meaning and evidentiary value of the admissible parts of the accused statement." See also E. Im-winkelried, Uncharged Misconduct Evidence § 6:12 (1994) (uncharged misconduct evidence is admissible to explain relevant conduct only when explanation for the conduct is actually needed).

Applying these standards, we conclude that the references to the prior assault on the cousin were not independently relevant to the charged offense and that such references could have been excised without impairing the content of the relevant statements. Further, evidence of the prior assault was not needed to explain the relevant conduct and statements.

Also, as in Callis v. People, supra, here any probative value of the references to prior criminal conduct was significantly outweighed by the danger of unfair prejudice. CRE 408.

The People urge that, even if we conclude that the prior act evidence was improperly admitted, the error should be deemed harmless in light of the overwhelming evidence of defendant's guilt. We disagree.

I a reviewing court can say with fair assurance that, in light of the entire record of the trial, the alleged error did not substantially influence the verdict or impair the fairness of the trial, the error may properly be deemed harmless. People v. Leske, 937 P.2d 821 (Colo.App.1996); see Crim. P. 52(a).

Here, the victim's brother had previously recanted his statement that he saw the assault occur, but then returned to his original version at the time of trial. While there was lay testimony that the vietim had complained of anal pain and had an anal rash, there was no medical evidence confirming that an assault had occurred. Under these cireum-stances, we do not consider the evidence overwhelming and cannot agree that the improper admission of the evidence of the prior sexual assault did not substantially influence the verdiet or impair the fairness of the trial. Thus, we conclude that the conviction cannot stand and that a new trial is required.

IL.

Among the issues that may arise on retrial is defendant's contention that the trial court committed reversible error by concluding that the hearsay statements of the victim and her brother were reliable and admissible. We perceive no error in the admission of these statements.

In reporting the alleged sexual abuse, the victim and her brother made statements to their mother, their cousin, and to a police detective. Following a pre-trial hearing, the court concluded that the hearsay statements by the children were admissible under the excited utterance exception to the hearsay rule and pursuant to § 13-25-129, C.R.S. 1998.

Because the People concede, and we agree, that the hearsay statements do not qualify as excited utterances under CRE 808(2), we only address their admissibility under relevant statutory provisions.

Pursuant to § 18-25-129, C.R.S.1998, a child's out-of-court statement, not otherwise admissible by a statute or court rule that provides a hearsay exception, may be admissible as evidence in any criminal, delinquency, or civil proceedings in which a child is a victim of an unlawful sexual offense.

In a hearing conducted outside the presence of the jury, the court must find that the "time, content, and cireumstances of the statement provide sufficient safeguards of reliability." In addition, the child must either testify at the proceeding or there must be corroborative evidence of the act which is the subject of the statement. Section 18-25-129(1)(a)-(b), C.R.S.1998.

Factors to be considered in determining whether a child's out-of-court statement is reliable include:

(1) whether the statement was made spontaneously;
(2) whether the statement was made while the child was still upset or in pain from the alleged abuse;
(3) whether the language of the statement was likely to have been used by a child the age of the declarant;
(4) whether the allegation was made in response to a leading question;
(5) whether either the child or the hearsay witness had any bias against the defendant or any motive for lying;
(6) whether any event occurred between the time of the abuse and the time of the statement which could account for the contents of the statement;
(7) whether more than one person heard the statement; and
(8) the general character of the child.

People v. District Court, 776 P.2d 1083, 1089-90 (Colo.1989).

A trial court's findings concerning reliability of a child-viectim's out-of-court statements will not be disturbed on appeal if they are supported by the record. People v. Trujillo, 923 P.2d 277 (Colo.App.1996)

Here, the trial court found that the statements by the victim and her brother to their mother and the victim's statements to her cousin were spontaneous and that any follow-up questioning was non-leading. In addition, the mother and cousin testified that the children were frightened and nervous while describing the abuse. Similarly, with regard to the statements made to the police detective, the court found that the detective's questions were non-leading. Finally, the court found that the language used by both children was age-appropriate, that there was no prejudice or bias by the children against the defendant, and that there did not appear to be any event between the time of abuse and the time of the statements that would account for the contents of the statements. The record supports the court's findings.

Therefore, we find no abuse of discretion, and admission of the statements would again be appropriate on retrial.

TIL

Defendant next contends that the trial court erred by denying him access to DSS records. In addition, he argues that his appellate counsel should have been allowed access to these records for purposes of his appeal. We disagree.

After defendant moved for the pre-trial discovery of all DSS records regarding the victim, her brother, and their family, the trial court conducted an in camera review of the DSS records. Thereafter, the court released a portion of the records and found the remainder of the documents irrelevant.

Section 19-1-307(2)(f), C.R.S.1998, grants a court access to child abuse or neglect records upon its finding that such access may be necessary for determination of an issue before the court. Such access is limited to an in camera inspection unless the court determines that the public disclosure of the information contained in the records is necessary for the resolution of an issue then pending before it. People v. Turley, 870 P.2d 498 (Colo.App.1993).

The party seeking access to the child abuse reports has the initial burden of showing the applicability of an exception to the statute's rule of confidentiality. The court is under no obligation to review the record before there has been a sufficient offer of proof and it has made an initial finding of possible necessity. People v. Exline, 775 P.2d 48 (Colo.App.1988).

Although the trial court initially concluded that defendant had not made a sufficient offer of proof to support the disclosure of the confidential DSS records, the court nevertheless conducted an in camera review of the records in an "excess of caution." Even if we assume that defendant made a sufficient offer of proof, we also find no basis for the disclosure of the DSS records. Based on our review of the documents, we agree with the trial court's conclusion that the non-disclosed documents were not relevant to any issue before the court. Therefore, we conclude that the trial court did not abuse its discretion.

We also reject defendant's contention that his appellate counsel should have been allowed access to the sealed records for purposes of his appeal.

In Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), the Supreme Court addressed whether a defendant had a constitutional right to full access to confidential state child-abuse records. The Court held that a defendant's right to discover exculpatory evidence does not include the unsupervised authority to search through a state's files. While it acknowledged that an "advocate's eye" may be helpful to a defendant, the Court held that a defendant's right to a fair trial was protected by requiring the trial court to conduct an in camera review. In addition, the defendant was allowed to request and argue the materiality of specific information contained in the records. Finally, the Court noted that to allow full disclosure to defense counsel of the privileged child-abuse information would unnecessarily sacrifice the state's compelling interest in protecting this sensitive information.

Similarly, in People v. Bean, 137 Ill.2d 65, 147 Ill.Dec. 891, 560 N.E.2d 258 (1990), the court held that a defendant was not denied his right to effective eross-examination by the trial court's refusal to allow his counsel to review all of a witness' privileged mental health records. The court also rejected defendant's argument that his appellate counsel needed access to the confidential records for purpose of appeal. The court noted that the State had no greater knowledge than defense counsel of the sealed records at trial or during the appellate proceedings. After reviewing the sealed records itself, the court concluded that defendant was not denied effective assistance of appellate counsel as a result of the nondisclosure of the sealed records.

Here, neither defense counsel nor the attorney general's office was allowed access to the records for purposes of this appeal. Also, allowing appellate defense counsel to review the entire DSS file would unnecessarily sacrifice the state's interest in protecting the confidentiality of DSS records. We thus conclude that the trial court's in camera review of the DSS records, along with our review on appeal, provides sufficient safeguards of defendant's right to discovery of potentially exculpatory material.

IV.

Finally, as to his convictions as an habitual criminal, defendant contends that the prosecution failed to prove that he had two prior felony convictions. We conclude that the evidence was sufficient and, if admitted upon retrial, could support such convictions.

As proof of one of defendant's prior convie-tions, the prosecution submitted documentary evidence including an information, a minute order referring to the court's order of judgment and sentence, a conditions of probation order, and a petition and order to terminate probation. The prosecution also presented the testimony of the victim in the prior prosecution, as well as defendant's own admission that he had been convicted of and sentenced for two prior sexual assaults.

Section 16-13-102, C.R.S.1998, governs the admission of evidence in habitual criminal proceedings. It provides that a duly authenticated copy of the record of former convictions and judgments is prima facie evidence of the conviction and may be used as evidence at the habitual offender sentencing. Section 16-18-102, C.R.§.1998. Certified copies of public records provide proper authentication of former convictions and judgments for purposes of § 16-18-102, C.R.S.1998.

A conviction for purposes of the habitual offender statutes is effective as of the date the judgment of conviction is entered by the trial court. People v. Harris, 914 P.2d 434 (Colo.App.1995).

A judgment of conviction consists of the recital of the plea, or the verdict or findings, the sentence, the amount of presen-tence confinement, and costs, if any are assessed against the defendant. Crim. P. 32. A judgment enters when it is entered in the criminal docket. People v. Harris, supra.

The prosecution must prove defendant's prior convictions beyond a reasonable doubt. People v. Bielecki, 964 P.2d 598 (Colo.App.1998).

Here, as to one of the prior convie-tions, the prosecution presented certified copies of the minute order, which meets the requirements of a criminal docket entry according to Crim. P. 55(a)(8) and, therefore, constitutes the entry of the judgment of conviction. See People v. Harris, supra.

The minute order, in conjunction with a certified copy of the information, recited the defendant's guilty plea to criminal attempt to commit sexual assault on a child and a sentence of two years to probation. In addition, the certified copies of the conditions of probation order and the termination of probation order stated the applicable court costs and also recited defendant's sentence. Therefore, taken together, the certified records established all the necessary elements of a judgment of conviction under Crim. P. 82.

In addition, the testimonial evidence established that defendant was the person who had been convicted of the prior offense. The victim of the offense which led to the convietion testified that defendant had been the perpetrator. She further identified the jurisdiction in which the conviction had been entered, the approximate time the case was filed, and the sentence defendant received. Also, a police detective testified that, during a pre-trial interview, defendant admitted the prior conviction involving that victim and also admitted having received a two-year sentence to probation.

Finally, we also reject defendant's contention that the trial court improperly took judicial notice that the crimes alleged in the two prior convictions were felonies. See Massey v. People, 649 P.2d 1070 (Colo.1982)(classification of a past offense is a question of law and a court's taking judicial notice of such does not invade the province of the jury).

Under this state of the record, the evidence submitted to prove defendant's convictions could provide adequate support for a judgment of conviction as an habitual criminal.

The judgments are reversed, and the cause is remanded for a new trial.

Judge TAUBMAN concurs.

Judge METZGER dissents.

Judge METZGER

dissenting.

Because I see no abuse of discretion in the trial court's admission of evidence concerning defendant's prior sexual assault, I respectfully dissent from part I of the majority opinion and would affirm defendant's conviction.

The list of permissible purposes in CRE 404(b) for admission of other crimes evidence is not exhaustive. People v. Miller, 890 P.2d 84 (Colo.1995). There are numerous other uses to which evidence of criminal acts may be put, and those enumerated are neither mutually exelusive nor collectively exhaustive. See 1 McCormick on Evidence § 190 (J. Strong 4th ed.1992); 2 J. Weinstein & M. Berger, Weinstein's Federal Evidence § 404.22[6] (J. McLaughlin 2d ed.1999).

One proper purpose for admitting other acts evidence is to show the context of a charged crime. United States v. Brewer, 1 F.3d 1430 (4th Cir.1993).

In United States v. Sarracino, 131 F.3d 943 (10th Cir.1997), the court analyzed whether context evidence relating to a defendant's admission of culpability was properly admitted pursuant to Fed.R.Evid. 404(b). Concluding that the trial court had not abused its discretion in admitting such evidence, the court reasoned:

Although we have been unable to find any cases applying the context principle to a once-removed situation like the one before us, we believe the reasons for admitting context evidence apply equally in this situation. A jury 'cannot be expected to make its decision in a void" United States v. Masters, 622 F.2d 83, 86 (4th Cir.1980). The members of the jury had to determine what weight to give to [defendant's] admission, and to do so they had to know the cireumstances under which the admission was made. Consequently, because the evi-denee was offered to show context and not merely to show [defendant] had a tendency toward violence, the first part of the Rule 404(b) test [proper purpose] was satisfied.

United States v. Sarracino, supra, 131 F.3d at 949.

The parties argued the admissibility of the challenged evidence in light of the rule set out in Callis v. People, 692 P.2d 1045, 1051 (Colo.1984), which provides:

We thus hold that a trial court, in considering the admissibility of an accused's statement, must excise or delete any reference to prior eriminality that is not otherwise admissible under the narrow exceptions to the general rule of exclusion, unless such excision would significantly impair the meaning and evidentiary value of the admissible parts of the accused's statement. If the trial court rules that the reference to prior criminality qualifies for admission under applicable rules of relevancy or that the reference cannot be excised without impairing the meaning and evidentiary value of the other admissible parts of the statement, the court must then adbere to the procedural safeguards of Stull [v. People, 140 Colo. 278, 344 P.2d 455 (1959) ] by appropriately instructing the jury on the limited purpose for which such evidence is being received.

The evidence at issue here and its procedural history are as follows.

Here, after being released in October 1994 from serving the entirety of his prison sentence for sexually assaulting one of his nieces, defendant returned home to live with his parents. Also living in that home were defendant's brother and his wife, along with their three young children.

Because of defendant's criminal history, living arrangements were rigidly demarcated; defendant's brother and the brother's family lived in the basement and defendant and his parents lived upstairs. The children had been instructed by their parents and grandparents never to go upstairs and defendant had strict orders never to go to the basement. The children were never to be alone with defendant.

Defendant's brother and his family moved out of that home in late November 1994.

In mid-December 1994, defendant's brother's wife was told by her three-year-old daughter, the victim here, that "Uncle Joe [the defendant] hurt me." The child described graphically an incident of sexual assault she said had occurred in the basement when she was living in the same house as defendant. Her six-year-old brother confirmed, separately, essentially the same facts and related that he had seen the incident through the basement window.

The mother reported the incident to the police. The children's statements to authorities were essentially the same as the report they had given her.

According to the niece's testimony, in mid-March 1995, while watching television with his mother and his 18-year-old niece, defendant began screaming that, "I tried to f*** [the victim]." He also said he was going to rape the niece who was in the room at the time.

That niece later confronted defendant with the threat he had made during his outburst. Defendant denied having said that and told her, "I was talking about that other guy that raped you." She rejoined, "What other guy? No one else has ever raped me other than you." Defendant did not respond. In fact, defendant had sexually assaulted her when she was approximately four years old and had pled guilty to that offense.

The niece reported this conversation to the police and defendant admitted to a detective that he had sexually assaulted her several years earlier. He also admitted having told her that he had sexually assaulted the victim in this case.

A few days after defendant's confrontation with his niece, she was approached by the victim in this case. The victim confided to defendant's niece how defendant had sexually assaulted her. During this conversation, the victim asked: "Did Uncle Joe hurt you too?" The niece said, "Yes," and the victim then stated: "It's seary, huh?" The niece agreed.

Procedurally, the issue of admission of these statements was somewhat convoluted.

The day before trial, defense counsel moved to redact from defendant's statements to the detective all references to his prior criminality. In response, the prosecutor moved to admit the statements regarding the prior sexual assault on the niece pursuant to CRE 404(b) and res gestae.

The trial court partially granted defendant's motion and redacted all references to defendant's prison incarceration, all references to defendant's prior sexual assault on the niece's sister, and all references to his alleged prior sexual assault of his sister. However, the court determined the references to the prior sexual assault on his niece would be admitted.

The trial court analyzed the evidence in light of the principles set out in People v. Garner, 806 P.2d 366 (Colo.1991), and found:

It begins at the very beginning, with [defendant] being released from prison and the arrangements being made that ... the children would not be alone with him.... That whole arrangement cannot fully, in the Court's opinion, be understood by the jury without them understanding why it is that the arrangements were made.
Once the allegation is made, then a number of statements involve the Defendant's prior contact with [his niece] ...: [she] moving out and then moving in again with [the victim's parents], who were her aunt and uncle, and [the victim] then, because [the niece] was in the house, having the opportunity to speak with her and bringing her in her bedroom and talking with her, including statements of the Defendant allegedly hurting [the niece] also. The explanation by the children's mother that, either in detail about what happened, as she told the detective, or as she testified, that the Defendant hurt his cousins and they should stay away from him is also evidence which is part of this case and involves the prior assault on [the niece].

The court determined that this was proper context evidence, particularly in light of defendant's theory that the alleged victim and her brother were so sexually sophisticated as to be eapable of concocting their stories.

A trial court has substantial discretion when determining the admissibility of evidence of other acts. People v. Vialpando, 954 P.2d 617 (Colo.App.1997). Onee a trial court has ruled that such evidence may be admitted, we must afford it the maximum probative value attributable by a reasonable fact finder and the minimum unfair prejudice to be reasonably expected. People v. Gibbens, 905 P.2d 604 (Colo.1995). Thus, we may overturn this evidentiary ruling only if we find it to be manifestly arbitrary, unreasonable, or unfair. People v. Czemerynski, 786 P.2d 1100 (Colo.1990).

I cannot say the trial court abused its discretion in admitting the evidence. Its detailed and thorough findings are completely supported by the record. The context purpose was proper in light of the unique facts and cireumstances here, including the relationships among the parties, their living conditions and motives, and defendant's theory of defense. Unless the fact of defendant's prior sexual assault on his niece were known, the jury would have no framework within which to evaluate either defendant's or the victim's statements to her.

Under the unusual living arrangements of defendant's family, testimony that he was in the basement with the victim was highly significant. However, that significance is apparent only if the reason for those arrangements is known. If the jurors had not received testimony about defendant's eriminal history, they would have been placed in the impossible position of determining guilt or innocence by reference to unrelated snippets of information having no contextual meaning.

Hence, evidence was highly relevant and probative and was not so prejudicial as to inject extraneous considerations such as bias, sympathy, anger, or shock into the proceedings. People v. Gibbens, supra. And, the trial court correctly instructed the jury as to its limited purpose each time the evidence was mentioned and again in the final instructions.

Therefore, I would find no abuse of disceretion and would affirm the defendant's convietion.


source: Caselaw Access Project

author: Judge MARQUEZ.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Eric JAMES, and City and County of Denver, Intervenor.
    No. 99CA0568.
    Colorado Court of Appeals, Div. A.
    Feb. 17, 2000.
    Certiorari Denied Aug. 7, 2000.

    Ken Salazar, Attorney General, John J. Fuerst, IH, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Jessica Lynn West, Denver, Colorado, for Defendant-Appellant.
    Daniel E. Muse, City Attorney, Efrain M. Padro, Assistant City Attorney, Denver, Colorado, for Intervenor. -

       Justice COATS does not participate.

   Opinion by

Judge MARQUEZ.

Defendant, Eric James, has filed a motion for reconsideration of the trial court's denial of access to "gang files" that were sealed for appellate review, and the City and County of Denver (City) has moved to intervene. The motion to intervene is granted for the limited purpose of addressing the issue of access to the sealed record. The motion for access to the sealed record is denied.

Defendant was charged with twenty-seven felonies including violation of the Colorado Organized Crime Control Act. Section 18-17-101, et seq., C.R.S.1999. That charge alleged that defendant was a member of the Bloods gang and as such had participated in a pattern of racketeering.

In preparing his defense, defendant subpoenaed Denver Police Department gang files for those individuals listed as members of the Bloods. The City moved to quash the subpoena. The district court reviewed the gang files and determined to quash the subpoena by application of the Public Records Act, §§ 24-172-204(@2)(a)() and 24-72-8305, C.R.S., 1999, and Martinelli v. District Court, 199 Colo. 163, 612 P.2d 1083 (1980). It denied defendant access to the files and sealed them for appellate review.

After he was convicted on most of the charges, defendant filed this direct appeal. In the process of the appeal, he has sought access to the sealed gang files. This court notified the City of the motion and directed that the parties brief the issue. The City has moved to intervene and has filed a brief opposing the motion for access. We conclude that intervention is warranted for purposes of addressing the propriety of access to the files at issue.

Defendant contends that he has a constitutional right to the sealed material. He argues that: (1) he has a right to effective assistance of counsel in investigating his defense; (2) the People have an obligation to disclose such evidence pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and (3) his request is different from a request for privileged records of a witness.

The City argues that because the trial court has already determined that the materials are not discoverable, the appropriate appellate procedure is for the appellate court to deny access to defendant's counsel and to conduct an in-camera review of the files. We agree.

The district court's ruling in denying the defense access to the subpoenaed gang files is reviewed for an abuse of discretion. People v. Frost, 5 P.3d 317 (Colo.App.1999) (appellate court reviewed the sealed record without granting access to the parties).

Here, the subpoenaed records were and still are subject to a statutory confidentiality exception to the Public Records Act, §§ 24-72-204(2)(a)(I) and 24-72-305(5), C.R.98.1999. The prosecution has no greater knowledge of the contents of the files than does defense counsel. See People v. Frost, supra; People v. Webb, 6 Cal.4th 494, 24 Cal.Rptr.2d 779, 862 P.2d 779 (1994); People v. Bean, 137 Ill.2d 65, 147 Ill.Dec. 891, 560 N.E.2d 258 (1990). The propriety of the district court's ruling can be ensured by appellate court review of the sealed record without sacrificing the interest in nondisclosure or denying effective assistance of counsel to appellant. See People v. Frost, supra; United States v. Orozco, 982 F.2d 152 (5th Cir.1993); People v. Bean, supra.

We deny defendant's motion for reconsideration of the denial of access to the sealed record. The sealed record shall be made available for review by the division assigned to decide the appeal, and that division may decide whether to make the sealed record available to the parties.

Judge PLANK and Judge ROTHENBERG concur.


author: Judge KAPELKE.

text:
    China FREYER, Plaintiff-Appellant and Cross-Appellee, v. Richard E. ALBIN, M.D., Defendant-Appellee and Cross-Appellant.
    No. 97CA1707.
    Colorado Court of Appeals, Div. IV.
    Sept. 30, 1999.
    Certiorari Denied Aug. 7, 2000.

      James W. Avery & Associates, P.C., James W. Avery, Parker, Colorado, for Plaintiff-Appellant and Cross-Appellee.
    Pryor Johnson Montoya Carney and Karr, P.C., Elizabeth C. Moran, Englewood, Colorado; Kaluk, Burg and Tiemeier, LPP, C. Gregory Tiemeier, Denver, Colorado, for Defendant-Appellee and Cross-Appellant.

       Justice RICE does not participate.

   Opinion by

Judge KAPELKE.

In this medical malpractice action, plaintiff, China Freyer, appeals from the trial court judgment entered against her and in favor of defendant, Richard E. Albin, M.D. We affirm.

When she was 18 months old, in 1980, plaintiff underwent certain surgical procedures to correct sagittal craniosynostosis, a condition that results in an abnormal head shape. Defendant, who is a plastic surgeon, was involved in plaintiff's treatment at the time, as was another physician, a neurosurgeon.

In 1995, plaintiff, through her parents and guardians, brought this suit claiming that defendant and the neurosurgeon, as well as a hospital, acted negligently in the treatment and care of plaintiff and negligently failed to obtain the informed consent of plaintiff's parents to the surgery.

After plaintiff settled with and dismissed her claims against the neurosurgeon and the hospital, she continued to pursue her negligence claims against defendant and also sought to recover against him on a vicarious liability theory based on the alleged negligence of the neurosurgeon.

While the trial court permitted plaintiff to present evidence at trial to establish her vicarious liability claim, at the close of plaintiff's evidence the court granted defendant's motion for directed verdict on that claim. The court found that plaintiff had not established that defendant and the neurosurgeon had any type of relationship (such as agency, employment, partnership, or joint venture) that would support a claim of vicarious lHability.

At the conclusion of the trial, the jury returned a verdict in defendant's favor on the negligence claims. By its special verdict, the jury determined that plaintiff had been injured but that defendant had not been negligent and had not caused plaintiff's injuries. This appeal followed.

I.

At the outset, we address and reject defendant's assertion that this appeal must be dismissed as untimely. Defendant previously sought dismissal of this appeal by motion. However, a division of this court denied that motion, granted plaintiff's motion for an extension of time, denied defendant's motion for reconsideration of that ruling, and granted defendant leave to address the issue in the briefs.

This court has broad discretion in determining whether excusable neglect has been shown to justify an extension of the time for filing a notice of appeal. See Weason v. Colorado Court of Appeals, 731 P.2d 736 (Colo.1987). We find no basis for disturbing the previous discretionary determination by another division finding that plaintiff made such a showing. We therefore conclude that this court has jurisdiction and address the merits of the appeal.

IL

Plaintiff contends that the trial court erred in dismissing her claim against defendant based on a theory of vicarious liability. We disagree.

In advancing her vicarious liability argument, plaintiff relies on Bolles v. Kinton, 83 Colo. 147, 263 P. 26 (1928) and Scruggs v. Ottemann, 640 P.2d 259 (Colo.App.1981), as well as CJI-Civ.8d 15:10 (1989).

In Scruggs v. Otteman, supra, a division of this court discussed the basis upon and circumstances under which a physician may be held liable for the negligence of another physician. The division noted that when several physicians act independently in the course of treating a single person they generally are not jointly liable for the acts of one another. However, citing Bolles v. Kinton, supra, the division went on to state that when several physicians act in concert or are jointly employed, each might be held responsible for the negligent conduct of any or all of the others. As the opinion in Seruggs points out, such liability has been premised upon either joint tortfeasor principles or on principles of partnership law.

Both Seruggs and Bolles preceded enactment of § 18-21-111.5, C.R.S.1999, which was intended to abolish the harsh effects of joint and several tort liability and substitute a rule that each wrongdoer is liable only for the portion of a plaintiff's injuries that is represented by the wrongdoer's own percentage of fault. See Miller v. Byrne, 916 P.2d 566 (Colo.App.1995).

Under § 18-21-111.5(4), C.R.8.1999, however, joint liability may still be imposed where two or more persons "consciously conspire and deliberately pursue a common plan or design to commit a tortious act."

CJI-Civ.3d 15:10, which addressed "lHiability of physicians acting jointly," provided as follows:

When two or more physicians expressly or impliedly agree to work with each other to treat or care for a patient's injury or condition, each physician is legally responsible to the patient for any negligence of any of the other physicians arising out of and within the seope of their agreement to treat or care for that injury or condition.

Significantly, that jury instruction has been deleted in CJI-Civ. 4th (1998). The Notes for Use discussion in the 1998 volume explains that the former instruction "may no longer be an accurate statement of the law" in light of the enactment of § 18-21-111.5

We conclude that the adoption of § 18-21-111.5, which eliminated joint and several liability for joint tortfeasors, did, indeed, have the effect of eliminating liability of a physician for the negligent acts of another physician absent a showing that the physicians "acted in concert," as provided in § 13-21-111.5(4), or that the physicians were in an employment, partnership, or joint venture relationship with one another.

Here, the trial court did allow the jury to consider whether defendant was liable for conspiring or "acting in concert" with the neurosurgeon in the pursuit of a common plan. In finding in defendant's favor, however, the jury apparently found that plaintiff had not made such a showing.

As discussed, the trial court determined that plaintiff had not demonstrated the existence of any partnership or joint venture relationship between defendant and the neurosurgeon. Our review of the evidence confirms that conelusion.

Plaintiff has never claimed there was a partnership relationship. To the extent that she asserts the existence of a joint venture relationship, however, we note the following applicable principles.

Plaintiff had the burden of establishing the existence of a joint venture relationship. Fulenwider v. Writer Corp., 544 P.2d 408 (Colo.App.1975) (not selected for official publication).

As stated in City of Englewood v. Commercial Union Assurance Cos., 940 P.2d 948, 957 (Colo.App.1996):

A joint venture exists when there is: 1) a joint interest in property; 2) an express or implied agreement to share in profits or losses of the venture; and 3) actions and conduct showing joint cooperation in the venture.

Here, plaintiff made no showing that defendant and the neurosurgeon had a relationship having the hallmarks of a joint venture. The record reveals that the); practiced medicine separately, billed their patients separately, did not share profits or losses, and did not combine their property, money, or effects in furtherance of a venture. See Werkmeister v. Robinson Dairy, Inc., 669 P.2d 1042 (Colo.App.1983). Accordingly, we find no basis for rejecting the trial court's findings and conclusion in this regard.

Finally, plaintiff's argument that defendant can be found liable on a theory of "joint enterprise" was not alleged or addressed in the trial court and was first raised in briefs filed in this appeal. We therefore will not address it here. See Paine, Webber, Jackson & Curtis, Inc. v. Adams, 718 P.2d 508 (Colo.1986).

Accordingly, the trial court did not err in granting a directed verdict in defendant's favor on plaintiff's claim that defendant was vicariously liable for alleged negligence by the neurosurgeon. |

The judgment is affirmed.

Judge RULAND and Judge VOGT concur.


author: Judge RULAND. Judge BRIGGS

text:
    Nestor HORODYSKYJ and Zoriana M. Morozewych-Horodyskyj, Plaintiffs-Appellants, v. Richard KARANIAN, individually and as President/Owner of Argus Electric Service, Inc., and Argus Electric Service, Inc., Defendants-Appellees.
    No. 98CA0443.
    Colorado Court of Appeals, Div. IV.
    Sept. 30, 1999.
    Certiorari Granted Aug. 7, 2000.

      Knapp & Sachs, P.C., Debra Knapp, Benjamin Sachs, Denver, Colorado, for Plaintiffs-Appellants.
    John Kokish, P.C., John Kokish, Brian Kidnay, Castle Rock, Colorado, for Defendants-Appellees.
   Opinion by

Judge RULAND.

Plaintiffs, Nestor Horodyskyj (employee) and his wife, Zoriana M. Morozewyeh-Horo-dyskyj, appeal from the summary judgment in favor of defendants, Richard Karanian (co-employee) and Argus Electric Service, Inc. (employer). Plaintiffs also appeal from the order awarding costs to these defendants. We affirm in part, reverse in part, and remand with directions.

The employee worked as an apprentice electrician. The co-employee was his supervisor. The co-employee was also the owner and president of the employer.

The employee alleged that, during his one year of employment, the co-employee subjected him to sexual harassment amounting to sexual assault and battery, intentional infliction of emotional distress, negligent infliction of mental distress, and invasion of privacy. Based on the theory that the employee was constructively discharged, plaintiffs also alleged a claim for violation of § 24-84-402, C.R.S.1999, which prohibits discriminatory or unfair employment practices.

On behalf of the wife, the complaint alleged claims for loss of consortium based upon the injuries allegedly suffered by the employee. In addition, the claims asserted against the co-employee by both plaintiffs were also asserted against the employer based upon the doctrine of respondeat superior.

As pertinent here, the trial court concluded that the claim for constructive discharge under the Anti-Discrimination Act should be dismissed based upon its finding that the employee's status was "at-will." The court then concluded that the provisions of the Workers' Compensation Act, § 8-40-101, et seq., C.R.S.1999, barred plaintiffs' other claims. Judgment in favor of defendants was therefore granted on the wife's claim for loss of consortium. Defendants were awarded costs in the amount of $6544.65.

I.

We first address and reject plaintiffs' contention that the affirmative defenses based upon the Workers' Compensation Act and the derivative defense based upon co-employee immunity were waived because such were not pleaded in defendants' answer.

We agree that both legal theories constitute affirmative defenses. See Popovich v. Irlando, 811 P.2d 879 (Colo.1991)(co-employee immunity); Bigby v. Big 3 Supply Co., 937 P.2d 794 (Colo.App.1996)(exelusivity of the Act).

Further, under C.R.C.P. 8(c), an affirmative defense may be deemed waived if it is not included in the answer. However, if an affirmative defense is asserted in a motion for summary judgment and responded to without objection, it is deemed incorporated into the answer. Trujillo v. Farmers Insurance Exchange, 862 P.2d 962 (Colo.App.1993).

Here, in their motion for summary judgment, defendants asserted a defense based upon the Workers' Compensation Act to the sexual assault and battery claim. The parties argued the issue as if the defense had been raised against all of the tort claims.

In addition, while the doctrine of co-employee immunity was not referenced by name in the summary judgment submissions, this doctrine was obviously relied upon by the trial court in its ruling.

Under these circumstances, we view the issues as appropriate for review by this court.

IL.

Plaintiffs contend that the trial court erred in ruling that the employee was barred from pursuing his tort claims against the employer and the co-employee because the Workers' Compensation Act (Act) provides the exclusive remedy. We agree as to the claims against the co-employee only.

A.

For injuries arising out of and in the course of employment, an employee surrenders any right to claim damages from the employer except for the remedies granted by the Workers' Compensation Act. Section 8-41-104, C.R.S.1999;, see also § 841-102, C.R.S.1999. The Act represents & legislative decision to establish exclusive remedies for injuries that are covered by that legislation. Colorado Compensation Insurance Authority v. Baker, 955 P.2d 86 (Colo.App.1998).

A ruling that bars an employee's civil action in tort against an employer may seem to produce an unfair result in some circumstances. However, such a suit is barred only to the extent the employee is entitled to benefits under the Act, without regard to fault. The supreme court has described the purpose of the Act in providing benefits without regard to fault as "highly remedial and beneficent." In re Question Submitted by U.S. Court of Appeals, 759 P.2d 17, 26 (Colo.1988).

A determination whether the injury "arose out of" and "in the course of" the plaintiffs' employment requires resolution of separate issues. Popovich v. Irlando, supra. The two terms are not necessarily synonymous. In re Question, supra.

Here, it is undisputed that the intrusive physical touching and offensive comments attributed to the co-employee occurred "in the course of" the employment. The more difficult issue was whether the acts "arose out of" that employment.

An injury "arises out of" employment when there is a causal connection between the work conditions and the injury. To determine if the causal connection is sufficient, we must apply the "positional-risk," or "but for" test. See In re Question, supra.

In applying the positional-risk test, the supreme court has divided willful assaults by co-employees into three categories: (1) those assaults that have some inherent connection with the employment, such as those resulting from a dispute about job duties or performance; (2) those assaults that are inherently private, such as those resulting from the claimant's domestic or private life that are imported into the workplace; and (8) those assaults that are neither, and may therefore be described as "neutral." See In re Question, supra. The court has used the same three categories in analyzing a claim of intentional infliction of emotional distress resulting from sexual harassment by a co-employee. See Popovich v. Irlando, supra.

The supreme court in In re Question, supra, recognized that a willful assault on an employee by a co-worker falls in the first category to the extent a dispute arises out of enforced contacts which result from the duties of the job. Such assaults therefore arise out of the employment.

Of importance here, the court further determined that a dispute may be deemed to arise out of the employment relationship, even if the dispute does not center upon work-related issues or otherwise have an inherent connection with employment. See In re Question, supra (fn. 8). The resulting injuries are compensable under the Act because the work brought the employees together and created the relation and conditions resulting in the dispute See also Moorhead Machinery & Boiler Co. v. Del Valle, 934 P.2d 861 (Colo.App.1996).

Having analyzed the three categories of conduct, the supreme court in In re Question reached the following conclusion in regard to claims by employees against employers for assaults by co-employees:

Under the 'butfor test, assaults by coworkers are compensable as long as they are not motivated by personal vengeance stemming from contact with the employee outside of the employment.

In re Question, supra, 759 P.2d at 24. Thus, the employee who had been raped by a co-employee was barred from bringing a tort action against her employer because the injury was compensable under the Act.

Here, it is undisputed that it was because of the employment that the employee was subjected to the co-employee's alleged behavior. There was no indication that the employee and the co-employee even knew each other prior to employment. There was no allegation that the acts occurred outside the employment relationship or resulted from any contacts outside the employment relationship. Thus, because the sexual harassment did not fall in the second category of inherently private conduct, we perceive no error in the entry of summary judgment as to the employer. See In re Question, supra.

To the extent that Ferris v. Bakery, Confectionery & Tobacco Union, 867 P.2d 38 (Colo.App.1993) and Stamper v. Hiteshew, 797 P.2d 784 (Colo.App.1990) are inconsistent with that conclusion, we decline to follow these decisions.

In Ferris, a division of this court concluded that a tort claim for outrageous conduct could be maintained against an employer for sexual harassment by other employees because the claimant was a specific target of the conduct. However, as we read Im re Question, workers' compensation is the exclusive remedy against the employer for this type of conduct because work brought the employees together and created the conditions resulting in the inappropriate behavior.

In Stamper, another division of this court determined that an intentional tort claim for sexual harassment could be maintained against a co-worker who also owned the business as a sole proprietorship. The division determined that this type of conduct was not properly characterized as a "neutral force" and, thus, did not arise out of the employment. To the extent that the validity of the claim was based upon the defendant's status as a co-worker, we agree with the result for reasons stated in Part II.B. of this opinion. To the extent, however, that the opinion may be read as holding that workers' compensation was not the exclusive remedy against the employer in the employment context, we disagree with the opinion.

B.

Under certain circumstances, the conduct of a co-employee also is protected by immunity. Kandt v. Evans, 645 P.2d 1300 (Colo.1982). However, we agree with plaintiffs that the trial court erred here in dismissing their tort claims against the co-employee based upon the doctrine.

In Popovich v. Irlando, supra, 811 P.2d at 384, our supreme court stated:

If the tortious conduct originates in matters personal to the tortfeasor ... then the tortious conduct does not arise out of employment and thus is not immunized ... by reason of the co-employee immunity rule, even though the injury to the victim . occurs within the seope of the victim's employment.

Here, the allegations in the amended complaint satisfy the Popovich requirements and the factual disputes relative to those allegations may not be resolved via the summary judgment process. Hence, plaintiffs are entitled to proceed to trial on the tort claims against the co-employee. See Patel v. Thomas, 793 P.2d 632 (Colo.App.1990)(allegations of plaintiffs' complaint against the co-employee for various forms of on-the-job sexual harassment raised sufficient factual issues as to private nature of elements of relationship to preclude dismissal of complaint under exelusivity provisions of Act).

IIL

Plaintiffs contend next that the wife's claim for loss of consortium was erroneously dismissed. We agree only as to the co-employee.

Because the wife's claim is derivative of the employee's claims, and because the employee's claims against the employer are barred by the exclusivity provision of the Act, the loss of consortium claim was also subject to summary judgment. See Pizza Hut of America, Inc. v. Keefe, 900 P.2d 97 (Colo.1995).

Dismissal of the claim as against the co-employee was error for the reasons noted in Part ILB. of this opinion.

IV.

As to the claim for discriminatory employment practices under the Anti-Discrimination Act, plaintiffs assert that the trial court's dismissal of this claim was also error. We disagree.

The Anti-Discrimination Act provides that it is a discriminatory employment practice to "discharge" any person because of "sex." Section 24-834-402(1)(a), C.R.8.1999. This provision encompasses sexual harassment claims. Ferris v. Bakery, Confectionery & Tobacco Union, supra.

However, the Anti-Discrimination Act does not provide a remedy to an employee for discriminatory conduct that does not result in an employment-related decision affecting the employee's pay, status, or tenure. Therefore, if an employee is subjected to verbal or physical abuse in the workplace on the basis of gender, but is not hired, fired, promoted, demoted, or compensated on that basis, the Anti-Discrimination Act provides no recourse. Brooke v. Restaurant Services, Inc., 906 P.2d 66 (Colo.1995).

Here, plaintiffs assert that their allegations of constructive discharge due to a hostile environment are sufficient to support a claim under the Anti-Discrimination Act, even though the employee was not actually discharged. However, Brooke v. Restaurant Services, Inc., supra, specifically holds to the contrary.

Further, even if we assume that a form of constructive discharge may suffice under the rule adopted in Colorado Civil Rights Commission v. State ex rel. School District No. 1, 30 Colo.App. 10, 488 P.2d 83 (1971), that rule does not apply here. It is undisputed that the employee quit because of the co-employee's conduct and that the co-employee did not act in a manner to cause "a prudent person to believe that his tenure had been terminated." Colorado Civil Rights Commission v. State ex rel. School District No. 1, supra, 30 Colo.App. at 16, 488 P.2d at 86.

By reason of our resolution of this issue, it is unnecessary to address the parties' contentions relative to whether the Act applies to same-sex harassment.

V.

Because we have reversed the judgment of dismissal as to the co-employee, the award of costs may not stand. See Rossman v. Seasons at Tiara Rado Associates, 943 P.2d 34 (Colo.App.1996)(if underlying judgment is reversed, award of costs must be vacated). Thus, we need not consider this issue further.

The judgment dismissing plaintiffs' tort claims against the co-employee is reversed, as is the award of costs, and the cause is remanded for further proceedings consistent with the views expressed in this opinion. That part of the judgment dismissing plaintiffs' other claims is affirmed.

Judge KAPELKE concurs.

Judge BRIGGS specially concurs.

Judge BRIGGS

specially concurring.

I agree with the majority that in the circumstances presented here the employer, but not the co-employee, has immunity from the employee's action in tort. I write separately to address the distinct sources and rationales for employer and co-employee immunity and to stress the resulting difference in their scopes. I also write to address the difference between the analysis that leads to my conclusion and the analysis used in some prior decisions.

I.

As the majority notes, the bar on civil actions in tort by employees against employers for injuries arising out of and in the course employment is a creature of statute. See §§ 8-41-104 and 8-41-105, C.R.8.1999. In re Question Submitted by U.S. Court of Appeals, 759 P.2d 17 (Colo.1988). In contrast, the bar on tort claims by employees against co-employees is a judicially created rule. See Popovich v. Irlando, 811 P.2d 379 (Colo.1991).

Just as the sources of immunity differ for employers and co-employees, so do the underlying policy considerations. For example, tort immunity for an employer is part of a statutorily created social contract that, at the same time, makes the employer liable to an injured employee for workers' compensation benefits, without regard to fault. To the extent one remedy is not available, the other is. Thus, even though the result is to give the employer immunity from tort claims, making the employer liable for workers' compensation benefits when an employee is injured by the intentional acts of a co-employee is deemed to further the "broad remedial objective" of the Workers' Compensation Act. See In re Question, supra, 759 P.2d at 21.

The same remedial goals and resulting social contract do not underlie co-employee immunity. Of course, granting a co-employee immunity from suit may be consistent with the aim of the workers' compensation scheme in some cireumstances. For example, in accepting employment in a job that involves inherent risks of injury, it can be argued that a co-employee may reasonably expect immunity from a tort claim for negligence resulting in an industrial accident. See Kandt v. Evans, 645 P.2d 1300 (Colo.1982).

Nevertheless, an employee does not receive any additional remedy under the Workers' Compensation Act when immunity from a civil action is extended to a co-employee. Further, immunity eliminates the beneficial deterrent effect of the threat of suit. Moreover, a co-employee who is alleged to have committed an intentional tort has less of a reasonable expectation of immunity from suit as part of any social contract. See Popovich v. Irlando, supra.

The majority of states therefore do not provide any form of immunity to a co-employee for alleged intentional acts. See generally A. Larson & L. Larson, 6 Larson's Workers' Compensation Law, § 72.21 (1998)(thirty-four states have now abolished co-employee immunity for intentional conduct). While Colorado has not entirely abandoned the doctrine, the supreme court has made clear that a co-employee's immunity from tort claims for intentional acts is not as extensive as an employer's immunity.

As the majority indicates, the supreme court has adopted the "positional-risk," or "but for," standard to determine when a claim "arises out of" employment. This standard applies for purposes of determining the scope of immunity for both employers and co-employees. See Popovich v. Irlando, supra; In re Question, supra.

Likewise, in determining the scope of immunity for both employers and co-employees, the supreme court has divided intentional conduct by co-employees into three categories: conduct that has some "inherent connection with employment"; conduct that is "inherently private"; and conduct that is deemed to be neither, and may therefore be called "neutral." See Popovich v. Irlando, supra; In re Question, supra.

However, the supreme court has reached very different conclusions regarding the result of placing a co-employee's intentional conduct in one of the three categories. The difference depends on whether the immunity is for an employer or a co-employee.

As to employer immunity, the court in In re Question, supra, 759 P.2d at 21, concluded as follows:

Under the 'but-for test, assaults by coworkers are compensable as long as they are not motivated by personal vengeance stemming from contact with the employee outside of the employment.

In other words, unless the conduct falls within the second category of "inherently private" conduct, the employer is immune from suit-but the injured employee is eligible for workers' compensation benefits.

In contrast, as to co-employee immunity, the supreme court concluded in Popovich v. Irlando, supra, 811 P.2d at 384, as follows:

[TJhe rule of co-employee immunity must be strictly limited 'to injuries sustained where both the tortfeasor and the victim are acting in the course of their employment' in order to preserve the deterrent function of tort liability 'as to those acts between employees not "arising out of and in the course of" the employment relationship. Claimant's tort claim will be barred by reason of the 'arising out of component of the co-employee immunity rule only if the tortious conduct originates in the work-related duties or responsibilities of the co-employee tortfeasor so as to be considered part of the co-employee's service to the employer in connection with the co-employee's contract of employment. If the tortious conduct originates in matters personal to the tortfeasor or derives from a neutral source unrelated to the tortfeasor's employment, then the tortious conduct does not arise out of employment and thus is not immunized from tort lability by reason of the co-employee immunity rule, even though the injury to the victim of tort occurs within the seope of the victim's employment. (emphasis added)

In other words, unless the co-employee's conduct falls within the first category of conduct that is "inherently connected with the employment," such as a dispute over job duties or performance-the co-employee is not immune from suit-even if the employee is eligible for workers' compensation benefits.

The result is that, for the same conduct by the co-employee, the employee's injuries may be deemed to have arisen out of employment for purposes of employer immunity, but not for purposes of co-employee immunity. It may be confusing analytically to treat injuries caused by identical co-employee conduct as arising out of employment for one purpose but not the other. Nevertheless, the difference in result is grounded in sound public policy.

Accordingly, I agree with the majority that the employee in this case is barred from bringing a civil action against the employer for the alleged intentional conduct of the co-employee. At the same time, the employee is not barred from bringing a civil action against the co-employee.

IL.

Our conclusions differ from those in Ferris v. Bakery, Confectionery & Tobacco Union, 867 P.2d 38 (Colo.App.1993), and Stamper v. Hiteshew, 797 P.2d 784 (Colo.App.1990). The difference results from the application of the tests articulated by the supreme court in In re Question and Popovich.

In Stamper, the claimant brought a civil action against her employer, an individual doing business as a sole proprietorship. She alleged that the employer had personally engaged in, among other things, acts of sexual harassment. The trial court granted summary judgment dismissing her state claims as barred by the Act.

On appeal, the division in Stamper reversed. It reasoned that a neutral force, the third category of conduct defined by the supreme court in In re Question, was one that is blind or irrational in nature, having been applied against the employee solely because the employee happened to be at a particular place at a particular time. The division concluded that, because the employer's acts had been targeted at the employee, they were not neutral in nature. It further concluded that, as a result, the claims could not be characterized as having arisen out of the employment. The division made no distinction between the roles of the defendant as the employer liable for payment of workers' compensation benefits and as the co-employee.

In Ferris, the employee likewise brought suit against her employer. She alleged that she had been subjected to a continuing series of unwanted sexual advances, primarily by the employer's president. The trial court granted summary judgment in favor of the employer.

On appeal, the division reversed the summary judgment granted the employer on the claims based on sexual harassment. Relying on Stamper, the division concluded that, because the alleged acts were specifically targeted at the employee, they could not be deemed neutral in nature. As in Stomper, the division in Ferris further concluded that the employee's injuries did not arise out of the course of employment.

My analysis differs from that in Ferris and Stamper in two respects. First, I do not agree that merely because a co-employee's conduct is intentionally directed at an employee, it therefore cannot be deemed to fall in the third category of neutral conduct. I recognize that in In re Question and Popo-vich, the supreme court included certain statements that could lead to such a conclusion. For example, the court did refer to intentional acts that constitute neutral forces as those that in essence are equivalent to blind or irrational forces that would have caused injury to any employee who happened to be in the position of the employee at the time and place in question. However, while these are certainly examples of neutral forces, I do not read the opinions as HEmiting the third category of neutral conduct to that which is a blind or irrational force not directed at a particular employee.

The supreme court in both In re Question and Popovich defined "neutral conduct" in several ways. For example, the court twice expressly stated that the third category of neutral conduct refers to all conduct not falling within the other two categories of conduct that is "inherently private" or "inherently connected with employment." In re Question, supra, 759 P.2d at 22 (An employee may be injured by "some neutral force, meaning by 'neutral' neither personal to the claimant nor distinctly associated with the employment.")(emphasis original), In re Question, supra, 759 P.2d at 23 ("Wilful assaults upon the claimant, like injuries generally, can be divided into three categories: those that have some inkerent conmection with the employment, those that are inherently private, and those that are neither, and may therefore be called 'neutral' ")(emphasis original).

More recently, the court in Popovich provided the same definition. Popovich v. Irlando, supra, 811 P.2d at 383 ("We noted in [In re Question ] that intentional torts committed against an employee by a co-employee can be divided generally into three categories; those that have an inherent connection with the employment; those that are inherently private; and those that are neither inherently employment-related nor private and thus are designated as 'neutral' ").

Under this approach, the third category of neutral conduct is not limited to conduct that is the product of "blind or irrational force not directed at a particular employee," which would thereby exclude all co-employee intentional acts directed at other employees. Rather, co-employee intentional acts that are neither inherently connected with employment nor the result of inherently private conduct are treated as equivalent to blind or irrational forces. See In re Question, supra, 759 P.2d at 24 ("The third category of neutral assaults includes 'assaults which are in essence equivalent to blind or irrational forces ... .'")(emphasis added).

The other difference between my analysis and that in Ferris and Stamper is my disagreement with the assumption in those cases that in determining employer immunity, unless the conduct is deemed to fall within the third category of "neutral" conduct, an employee's injuries necessarily do not arise out of the employment relationship. To the contrary, as the supreme court made clear in In re Question, unless the co-employee's intentional conduct falls within the second category of "inherently private" conduct, the employee's injuries do arise out of the employment, at least for purposes of employer immunity.

In neither Ferris nor Stamper did the employee and co-employee have any contacts or relationship outside the workplace that led to the co-employee's intentional conduct. Thus, however else the intentional acts in those cases might be characterized, they cannot be characterized as falling within the second category of "inherently private" conduct.

As a result, under the supreme court's test in In re Question for employer immunity, the injuries in both Ferris and Stamper cases did arise out of and in the course of employment. The employees in both cases should therefore have been barred from pursuing any tort claims against their employers.

On the other hand, in neither Ferris nor Stamper did the co-employees' intentional conduct arise out of any dispute about job performance, duties, or conditions or, aside from time and place, have any other connection with employment. Thus, however else the intentional acts in those cases might be characterized, they cannot be characterized as falling within the first category of conduct "inherently connected with employment."

As a result, under the supreme court's test in Popovich for co-employee immunity, the employee's injuries in both Ferris and Stamper cases did not arise out of and in the course of employment. The employees in both cases therefore could properly bring civil actions in tort against the co-employees.

Under my interpretation of In re Question and Popovich I do agree with the result reached in a third opinion decided by this court. In Patel v. Thomas, 793 P.2d 632 (Colo.App.1990), the employee brought suit for sexual harassment, not against the employer, but against the co-employee. The conduct of the co-employee was not inherently connected with employment. Thus, while my approach differs in some respects, in my view the division in Patel properly concluded that the co-employee was not immune from suit.

The only possible caveat to these conclusions is whether a different rule should apply to a business operated as a sole proprietorship. That issue was not addressed in Ferris or Stamper, and we have no occasion do address it here.

In sum, the tests for determining employer and co-employee immunity share some similarities. Nevertheless, the two immunity doctrines stem from different sources, rest on different policy considerations, and, as a result, are different in scope. Because of that difference, I concur in the majority's conclusion that the employee is barred from bringing a tort action against the employer, but not the co-employee.


author: Judge TAUBMAN.

text:
    Mark D. ROGET and Lori L. Roget, Plaintiffs-Appellees and Cross-Appellants, v. GRAND PONTIAC, INC., Defendant-Appellant and Cross-Appellee.
    No. 97CA2224.
    Colorado Court of Appeals, Div. V.
    Oct. 28, 1999.
    As Modified on Denial of Rehearing Jan. 6, 2000.
    Certiorari Denied Aug. 7, 2000.

      Douglas Pooley, Denver, Colorado, for Plaintiffs-Appellees and Cross-Appellants.
    Ruh & Associates, LLC, Richard P. Rub, Aurora, Colorado, for Defendant-Appellant and Cross-Appellee.
   Opinion by

Judge TAUBMAN.

In this action arising from an auto lease dispute, defendant, Grand Pontiac, Inc., appeals the judgment entered upon a jury verdict against it and in favor of plaintiffs, Mark D. and Lori L. Roget. Plaintiffs challenge on cross-appeal the trial court's determinations regarding attorney fees and costs. We affirm in part, reverse in part, and remand for further findings.

In January 1990, the Rogets entered into an auto lease with Grand Pontiac. Shortly thereafter, Grand Pontiac assigned the lease to General Electric Capital Auto Lease (GE-CAL). In January 1991, GECAL filed a complaint against the Rogets alleging that they were in default for failure to make monthly lease payments. The Rogets filed a counterclaim and a third-party complaint against Grand Pontiac, alleging several contract and tort claims, and also claims based on alleged statutory violations. Prior to trial, the Rogets and GECAL settled their claims, which were dismissed with prejudice.

Following a trial in April 1992, the Rogets were awarded damages against Grand Pontiac on some of their claims. When the jury returned the verdiet forms, however, confusion ensued regarding the correct calculation of damages. After several unsuccessful attempts to resolve the matter in the trial court, a division of this court reversed the judgment in Roget v. Grand Pontiac, Inc. (Colo.App. No. 94CA0706, Nov. 24, 1995) (not selected for official publication), and the matter proceeded to trial a second time.

On retrial, the jury returned a verdict in favor of the Rogets on their claims for violations of the state consumer protection act and motor vehicle licensing laws, and on their claim of outrageous conduct. Grand Pontiac appeals this judgment.

The trial court awarded attorney fees and costs to the Rogets, but declined to award either prejudgment interest on such fees or computerized legal research expenses as costs. The Rogets, on cross-appeal, challenge these determinations concerning their award.

I. Assignment of the Lease

Grand Pontiac first contends that the trial court erred by denying its motion for a directed verdict on all claims based on its assertion that the Rogets' settlement with GECAL released Grand Pontiac from all liability. We are not persuaded.

Here, Grand Pontiac asserts that, because the relevant statutes govern its conduct as well as that of GECAL, it should have been considered jointly and severally liable with GECAL for the Rogets' claims. Based on this supposed joint and several lHability, Grand Pontiac contends that it was a "co-obligor" with GECAL and that a release of one co-obligor releases all. Thus, Grand Pontiac concludes, the Rogets' release of GE-CAL pursuant to its settlement extinguished the liability of Grand Pontiac as well.

The trial court found, however, that Grand Pontiac and GECAL were not co-obligors and rejected Grand Pontiac's argument. We agree with the trial court.

After the assignment, GECAL became the obligee under the lease agreement while the Rogets remained obligors. Because GECAL was an obligee, Grand Pontiac could not be a co-obligor with GECAL.

Grand Pontiac further asserts that, after the assignment, the relationship between Grand Pontiac and GECAL became one of principal and surety with Grand Pontiac as the surety for GECAL. Grand Pontiac argues that, based on this relationship, a release of GECAL as principal resulted in a release of itself as the surety.

Even if we assume that Grand Pontiac was a surety for GECAL, the Rogets' release of GECAL three days before trial did not release Grand Pontiac from liability. Where a principal/surety relationship arises, the release of the principal releases the surety from liability, unless a party expressly reserves its right to proceed against the surety or receives the surety's consent to remain liable. Matthews v. Saleen, 812 P.2d 1186 (Colo.App.1991).

Here, Grand Pontiac was a party to the Rogets' settlement with GECAL. Further, in his opening statement at trial, Grand Pontiac's attorney acknowledged such settlement without contending that Grand Pontiac had been released from liability as a result of the stipulation to dismiss GECAL. Under these cireumstances, we conclude that, by its conduct, Grand Pontiac consented to remain liable.

Furthermore, the trial court found that, where a lessor assigns a lease to another party, a lessee's release of the assignee does not necessarily result in a waiver of its claims of wrongdoing against the assignor. Again, we agree with the trial court.

An assignment does not relieve the assignor from liability under the contract. Rather, after the assignment, the assignee becomes primarily liable for the obligations under the contract, while the assignor remains secondarily liable The debtor may then sue the assignor, the assignee, or both. See Herigstad v. Hardrock Oil Co., 101 Mont. 22, 52 P.2d 171 (1935); Southern Surety Co. v. W.E. Callahan Construction Co., 283 SW. 1098 (Tex.Civ.App.1926); see also Sobol v. Avila, 480 P.2d 116 (Colo.App.1970) (not selected for official publication).

Thus, we conclude that the Rogets' settlement with GECAL did not release Grand Pontiac from all liability because it was still secondarily liable under the lease agreement.

IL Outrageous Conduct

A. Directed Verdict

Grand Pontiac also asserts that the trial court erred by denying its motion for directed verdict on the claim of outrageous conduct. It argues that insufficient evidence existed for submission of the claim to the jury. We disagree.

When reviewing a trial court's denial of a motion for a directed verdict, we must ask whether a reasonable jury, after drawing all possible inferences from the evidence presented, could reach the same verdict delivered at the trial. Palmer v. A.H. Robins Co., 684 P.2d 187 (Colo.1984).

We must also view the evidence which led to the jury verdict in the light most favorable to the prevailing party. Roberts v. Holland & Hart, 857 P.2d 492 (Colo.App.1993).

Outrageous conduct occurs when an actor intentionally and recklessly causes severe emotional distress. Hansen v. Hansen, 43 Colo.App. 525, 608 P.2d 364 (1980). Such conduct must be so outrageous and extreme as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community. Rugg v. McCarty, 173 Colo. 170, 476 P2d 753 (1970).

Conduct, otherwise permissible, may become extreme and outrageous if it is an abuse by the actor of a position in which he or she has actual or apparent authority over the other, or the power to affect the other's interest. Zalnis v. Thoroughbred Datsun Car Co., 645 P.2d 292 (Colo.App.1982); Restatement (Second) of Torts § 46 comment e (1965).

Although the question of whether conduct is sufficiently outrageous is ordinarily one for the jury, the court must determine, in the first instance, whether reasonable people may differ as to whether the conduct of a defendant is sufficiently extreme to result in liability. Card v. Blakeslee, 937 P.2d 846 (Colo.App.1996).

As to such issue, the trial court's conclusion of law is not binding on this court. Zalnis v. Thoroughbred Datsun Car Co., supra.

Here, the trial court found that the alleged course of conduct of the employees of Grand Pontiac included strong-arming during negotiations, committing fraudulent acts, and falsifying documents related to the lease transaction. The court found that the cumulative effect of these actions could constitute outrageous conduct.

In our view, reasonable persons could differ as to whether the conduct of Grand Pontiac was sufficiently extreme to result in liability. Evidence that Grand Pontiac refused to give Mark Roget the keys to his car when he requested them and the above-noted conduct by Grand Pontiac employees could be considered extreme and outrageous under these facts. See Zalnis v. Thoroughbred Datsun Car Co., supra. The question, therefore, was properly one for the jury to resolve.

B. Punitive Damages

Grand Pontiae also contends that the trial court erred by submitting the claim for punitive damages to the jury because the evidence of corporate involvement was insufficient as a matter of law. We disagree.

Punitive damages may be awarded against a corporation for the actions of its agent if the agent was employed in a managerial capacity and was acting within the scope of his or her employment. If the agent was acting in a managerial capacity, the corporation need not actually authorize or ratify the act to warrant an award of punitive damages. Jacobs v. Commonwealth Highland Theatres, Inc., 738 P.2d 6 (Colo.App.1986).

Here, the trial court found that the evidence was sufficient to allow the jury to conclude that the actions of the employees of Grand Pontiac who dealt with the Rogets were authorized and ratified by the corporation itself.

At trial, the Rogets presented evidence that Grand Pontiac's owner was present at the dealership during the initial meeting and that he had interacted with Mark Roget's brother-in-law who had accompanied Roget to the dealership. In addition, the Rogets presented evidence that several managers discussed the Rogets' lease and participated in facilitating the transaction at various stages of lease negotiations. We conclude that, even if there was insufficient evidence of explicit ratification of the outrageous conduct at issue, sufficient evidence of managerial participation existed to warrant allowing the jury to decide whether an award of punitive damages was proper. See Jacobs v. Commonwealth Highland Theatres, Inc., supra.

III Closing Argument

Grand Pontiac also urges that the trial court committed reversible error by allowing the Rogets' counsel to state during closing argument that Grand Pontiac's use of the wrong disclosure form resulted in an illegal contract. We conclude that any error by the trial court in this regard was harmless.

An objectionable characterization of the evidence during closing arguments does not necessarily constitute reversible error where the jury is given a curative instruction. See Smith v. JBJ Ltd., 694 P.2d 352 (Colo.App.1984).

Here, during the Rogets' closing argument, Grand Pontiac objected to counsel's characterization of the lease as invalid and illegal based on Grand Pontiac's failure to use the correct disclosure form as required by law. The trial court found that the use of the incorrect form was illegal, but that this fact did not necessarily render the lease contract invalid. The court then gave the jury a curative instruction stating that the failure to use the correct form did not render the contract invalid, only illegal. Counsel for the plaintiff later referred to the lease as illegal, based on the assertion that the lease agreement consisted of several documents including the illegal form.

Although Grand Pontiac asserts that it was prejudiced by the trial court's overruling its objection to the closing argument, we conclude that any error by the trial court in this regard was harmless. The challenged remark in the Rogets' closing argument was not material to any of the Rogets' claims on which they prevailed.

We recognize that the Rogets were required to prove that Grand Pontiac "committed an illegal act under the Motor Vehicle Dealer Act" to prevail on its claim under this statute. However, this did not require the jury to find that there was an illegal contract, as such. Evidence of an "illegal act" under the statute existed since Grand Pontiac used the incorrect disclosure form in violation of statutory requirements. Thus, Grand Pontiac's rights were not substantially affected by the characterization of the contract as illegal. See Hancock v. State, 758 P.2d 1372 (Colo.1988).

IV. Evidence Supporting Attorney Fees

Finally, Grand Pontiac asserts that the trial court erred in awarding attorney fees because the evidence presented by the Ro-gets' counsel failed to demonstrate the prevailing rates in the community for services similar to those which he performed. We conclude that the award of attorney fees was supported by sufficient evidence.

It is improper for a trial court to take judicial notice of fees charged in the community when assessing the reasonableness of an award. L.D.G. v. E.R., 723 P.2d 746 (Colo.App.1986).

However, the unrebutted testimony of an attorney may be sufficient to support a finding of reasonableness of fees awarded. P & M Vending Co. v. Half Shell of Boston, Inc., 41 Colo.App. 78, 579 P.2d 93 (1978); see Husband v. Colorado Mountain Cellars, Inc., 867 P.2d 57 (Colo.App.1993) (testimony of plaintiff, who was attorney, was sufficient to support finding of reasonableness of fees).

The determination of the reasonableness of attorney fees is within the sound discretion of the trial court and will not be reversed unless it is patently erroneous and unsupported by the evidence. Newport Pacific Capital Co. v. Waste, 878 P.2d 136 (Colo.App.1994).

Here, Rogets' counsel submitted an affidavit and testified before the trial court regarding the reasonableness of the requested fee award. Based on that record, the trial court found that the rates charged by the Rogets' counsel, $125 to $150 an hour, were consistent with rates charged in commercial litigation of this type and that it was on the low side of the fee scale in the community. The trial court noted that the Rogets offered no evidence of prevailing rates in the community other than the testimony of their attorney. However, the court determined that the evidence was sufficient to establish the reasonableness of the hourly rate.

Even if the trial court relied to some extent on its general knowledge of prevailing attorney fees, we conclude that this reliance was harmless because the unrebutted testimony of the Rogets' counsel was sufficient to support the court's determination. Thus, we find no abuse of discretion on the part of the trial court.

V. Prejudgment Interest

On cross-appeal, the Rogets contend that the trial court erred by failing to award prejudgment interest on their attorney fee award. We are not persuaded.

The Rogets concede that their request is novel. However, relying on § 5-12-102(1)(a), C.R.S.1999, they argue that it is appropriate to award pre-judgment interest on attorney fees under a "wrongful withholding" theory to counteract the loss of the time value of the money at issue. In other words, the Rogets argue that because the litigation in this case spanned the course of several years, they should receive prejudgment interest on their award of attorney fees to compensate them for their loss of use of such money.

We do not agree that this argument is cognizable under a theory of wrongful withholding. The Rogets were not legally entitled to an award of attorney fees against Grand Pontiac until they prevailed at trial Thus, Grand Pontiac did not withhold attorney fees from the Rogets' counsel, much less wrongfully withhold such fees.

Consequently, we conclude that vthe trial court did not err in declining to award prejudgment interest on the fee award.

VI. Computerized Legal Research Expenses as Costs

Finally, the Rogets argue that the trial court erred in declining to award computerized legal research expenses as an item of costs. We agree that further proceedings are required.

After the Rogets requested an award of costs for computerized legal research, the trial court found that such expenses were not specifically authorized by statute or rule as a recoupable cost. The court also determined that such expenses do not fall within the scope of more general items identified within § 1316-122, C.R.S.1999. It concluded that computerized legal research "costs are actually a form of attorney fees as they are nothing more than a reference source for legal research."

We do not address the issue of whether the computerized legal research costs may be recoverable as attorney fees because we conclude that they may be awarded as costs.

Costs fall into two categories: 1) "those incidental to litigation ...; and 2) those arising from the structural costs of maintaining a judicial system...." Sears v. Romer, 928 P.2d 745, 752 (Colo.App.1996). See § 18-16-122.

Section 13-16-122 governs the award of costs. The list of items includable as costs in that statute is fHlustrative rather than exclusive. Cherry Creek School District No. 5 v. Voelker, 859 P.2d 805 (Colo.1993).

Items that courts have held may be awarded as costs include: docket fees, jury fees, photocopy costs, deposition costs, mileage, parking, delivery, and long distance telephone charges. See § 1316-122, CRS. 1999; Cherry Creek School District No. 5 v. Voelker, supro; Harvey v. Farmers Insurance Exchange, 983 P.2d 34 (Colo.App.1998) (cert. gramted on unrelated issues, September 13, 1999).

There is no Colorado appellate decision that squarely addresses the issue of whether computerized legal research expenses may be recoverable as costs. Cf. Newport Pacific Capital Co. v. Waste, 878 P.2d 136 (Colo.App.1994) (recognizing that numerous courts have allowed recovery of computerized legal research expenses as part of an award of attorney fees); Heating & Plumbing Engineers, Inc. v. H.J. Wilson Co., 698 P.2d 1364 (Colo.App.1984) (mentioning computerized legal research fees as an item potentially recoverable as part of an award of attorney fees).

Based on the broad definition of costs in Cherry Creek School District No. 5 v. Voelker, supra, we conclude that computerized legal research expenses may be recoverable as costs. Such expenses are those charged by third parties; we do not address here reimbursement for the time spent by lawyers or their assistants in conducting computerized legal research.

Absent a specific prohibition in the statute, a trial court has the discretion to award any reasonable costs requested. See American Water Development, Inc. v. City of Alamosa, 874 P.2d 352 (Colo.1994). When the costs requested are incurred for trial preparation purposes and are not commingled with the general costs of conducting business or the costs of other litigation, they are not overhead and may, in the court's discretion, be recovered as costs. Harvey v. Farmers Insurance Exchange, supra (affirming trial court's award of various costs including photocopies, deposition costs, mileage, parking, delivery, and long distance phone charges).

Similarly, when computerized legal research expenses are not commingled with other costs of conducting business or costs of litigation, they may be recovered as costs. See O'Donnell v. Georgia Osteopathic Hospital Inc., 99 FRD. 578 (D.Ga.1983) (determining that, because computer assisted research is separately billable to the client, it is recoverable as a cost); Aloha Tower Associates Piers v. Millennium Aloha, 938 F.Supp. 646 (D. Hawaiì 1996) (if computerized legal research expenses are separately billed to the client, such research costs are not part of the firm's overhead because they are part of the costs associated with representing a particular client, and ean be allocated to that client); cf. Haroco v. American National Bank & Trust, 38 F.3d 1429 (7th Cir.1994) (computer assisted legal research is not an expense taxable as costs, but is recoverable as part of an attorney fee award because computerized legal research costs are not included under the definition of costs contained in 28 U.S.C. § 1920); but see Ortega v. City of Kansas City, 659 F.Supp. 1201 (D.Kan.1987) (computer assisted research costs are not recoverable because they are included in a firm's overhead).

Accordingly, we conclude that $ 18-16-122 does not prohibit an award of costs that includes the expenses associated with computerized legal research. Thus, courts may exercise their broad discretion and award such expenses.

However, the recovery of computerized legal research as costs is conditioned upon meeting three requirements. First, a party seeking to recover such costs must show that the client was billed for computerized legal research expenses separate from attorney fees. See Case v. Unified School District No. 233, 157 F.3d 1243 (10th Cir.1998) (awarding computer research expenses where such charges are expenses normally itemized and billed in addition to the hourly: rate).

Second, as with any cost award, the computerized legal research must have been nee-essary for trial preparation. See Cherry Creek School District No. 5 v. Voelker, supra.

Finally, the costs requested for computerized legal research must be reasonable. See Cedar Lane Investments v. St. Paul Fire & Marine Insurance Co., 883 P.2d 600 (Colo.App.1994).

Thus, the cause here must be remanded for the trial court's determination of whether, in the court's discretion, the Rogets are entitled to recover computerized legal research expenses as an item of costs. If such computerized legal research expenses were billed to the Rogets as an item separate from attorney fees, they may be reimbursable to the extent they are reasonable and were necessary for trial preparation. If the Rogets were not billed separately for such expenses, they are not reimbursable.

The judgment is affirmed in all respects, except as to the denial of an award of costs for computerized legal research expenses. As to that issue, the judgment is reversed and the cause is remanded for determination whether such expenses meet the three requirements necessary to be recovered as costs.

Judge DAVIDSON and Judge KAPELKE concur.