author: Judge LOEB.

text:
    In re the MARRIAGE OF Lynne C. LAFAYE, Appellant, and Edward E. Lafaye, Appellee.
    No. 01CA1210.
    Colorado Court of Appeals, Div. I.
    Sept. 11, 2003.
    Certiorari Denied May 3, 2004.

      Antolinez Miller, LLC, Joseph H. Antoli-nez, Melissa E. Miller, Denver, Colorado, for Appellant.
    Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder, Colorado; Allen C. Christensen, Attorney at Law, P.C., Allen C. Christensen, Edwards, Colorado, for Appellee.
   Opinion by

Judge LOEB.

Lynne C. LaFaye (wife) appeals from the permanent orders entered upon dissolution of her marriage to Edward E. LaFaye (husband) and from the trial court’s order denying enforcement of a written marital agreement. We affirm.

The parties were married in 1984, and in March 1995, wife commenced a dissolution of marriage action. In March 1996, during the pendency of that action, the parties began to negotiate a post-nuptial agreement with a view toward reconciliation. The parties and husband’s counsel executed a post-nuptial agreement on November 7 and 8, 1996. By late November 1996, however, the parties’ attempted reconciliation had already failed.

When wife’s counsel executed the agreement in mid-December 1996, he learned that the dissolution matter was still pending. Then, “to confirm the validity and enforceability of their Post-Nuptial Agreement and consistent with their intent,” counsel for both parties signed a stipulation to dismiss the dissolution action, nunc pro tunc to November 6, 1996, the day prior to the signing of the agreement. On December 21, 1996, the court entered an order dismissing the first dissolution action, nunc pro tune to November 6,1996.

Subsequently, wife commenced a second dissolution action. In May 1998, the court conducted a two-day evidentiary hearing concerning the validity of the post-nuptial agreement under the Colorado Marital Agreement Act (Act), § 14-2-301, et seq., C.R.S.2002. The court determined that the post-nuptial agreement was not an enforceable marital agreement, but reserved decision on whether it could be enforceable on some other basis.

A permanent orders hearing was conducted over five days in early 2000. The court declined to enforce the post-nuptial agreement under equitable principles or promissory estoppel and determined the permanent orders issues by applying the relevant portions of the Uniform Dissolution of Marriage Act (UDMA), § 14-10-101, et seq. C.R.S. 2002.

I.

Wife first contends that the trial court erred as a matter of law in determining that the parties’ post-nuptial agreement was unenforceable and dividing the marital property according to the statutory criteria under the UDMA. We disagree.

A.

Wife argues that the court erred by refusing to enforce the agreement under the Act and by overruling the stipulated nunc pro tunc order dismissing the earlier dissolution of marriage action. She also argues that the court failed to recognize the effect of the voluntary dismissal of the first dissolution action. We reject these arguments.

The Act defines a “marital agreement” as “an agreement either between prospective spouses made in contemplation of marriage or between present spouses, but only if signed by both parties prior to the filing of an action for dissolution of marriage or for legal separation.” Section 14-2-302(1), C.R.S.2002. Such an agreement “becomes effective upon marriage, if signed by both parties prior to marriage, or upon the signatures of both parties, if signed after marriage.” Section 14-2-305, C.R.S.2002.

Here, the trial court acknowledged that the first dissolution action had been dismissed by court order nunc pro tunc to the day before the parties actually executed the agreement. However, it found with record support that the parties’ post-nuptial agreement was not enforceable under the plain language of the Act because it was signed by husband and wife during the pendency of the prior dissolution action. See In re Marriage of Bisque, 31 P.3d 175 (Colo.App.2001)(bright line rule in § 14-2-302(1), describing marital agreements as those made prior to filing for dissolution or legal separation, is clear and unambiguous). The record also reflects that wife’s counsel warned her on several occasions that the agreement would not be valid if she signed it before the prior dissolution action had been dismissed.

As noted, the trial court’s determination was based upon application of the plain language of § 14-2-302(1) to an agreement that wife sought to enforce in the subsequent dissolution action through a C.R.C.P. 57 motion. Thus, wife’s characterization of the court’s ruling as a collateral attack on the order dismissing the first dissolution action has no basis.

We also disagree with wife that the trial court was required to give effect to the nunc pro tunc dismissal of the prior dissolution action based upon the stipulation signed by counsel.

The Act’s requirement that present spouses sign a marital agreement prior to the filing of a dissolution action is based on public policy considerations that seek to safeguard the interests of a spouse involved in the emotionally stressful circumstances of a dissolution action. See In re Marriage of Manzo, 659 P.2d 669 (Colo.1983)(assumption that parties in intact marriage will deal fairly and rationally disappears under emotionally stressful circumstances created by filing of dissolution action); In re Marriage of Bisque, supra.

Here, not only did the parties sign the agreement while a dissolution action was pending, but counsel had admonished the parties not to sign the agreement until that action had actually been dismissed. By the time counsel signed the stipulation for dismissal in mid-December 1996, the parties’ attempted reconciliation had failed. Nothing in the record indicates that the trial court was aware of this chronology when it signed the nunc pro tunc dismissal.

Under these circumstances, we conclude that giving effect to the nunc pro tunc dismissal would be contrary to the public policy of the Act. Hence, and the trial court did not err in refusing to enforce the agreement under the plain language of the statute.

We are not aware of any appellate opinion that has upheld a marital agreement based on a nunc pro tunc dismissal of a pending dissolution action. The cases cited by wife are distinguishable and are based on other policy considerations not relevant here. For example, in Diebold v. Diebold, 79 Colo. 7, 243 P. 630 (1926); Perdew v. Perdew, 99 Colo. 544, 64 P.2d 602 (1936); and In re Estate of Becker, 32 P.3d 557 (Colo.App.2000), aff'd sub nom. In re Estate of DeWitt, 54 P.3d 849 (Colo.2002), nunc pro tunc divorce decrees were used to validate a party’s remarriage occurring after the entry of an order dissolving the marriage and before the effective date of the decree. Further, unlike the facts here, the retroactive dates for the nunc pro tune orders in those cases corresponded to dates on which events dispositive to the dissolution rights actually occurred in court. See, e.g., In re Estate of Becker, supra (decree entered nunc pro tunc to date of final orders hearing).

Finally, nunc pro tunc orders have not been approved when they would have operated to reduce or defeat a party’s procedural rights. See In re Estate of Becker, supra; Joslin Dry Goods Co. v. Villa Italia, Ltd., 35 Colo.App. 252, 539 P.2d 137 (1975)(nunc pro tunc order cannot be used to reduce the time nor defeat the right to file an appeal). Similarly, giving effect to the nunc pro tunc dismissal here would be contrary to the public policy that forms the basis for the plain language of the Act.

In this case, the public policy protecting spouses during a dissolution remained a viable concern despite the voluntary and technical nunc pro tunc dismissal of the first dissolution action. Indeed, the record here illustrates what can result from the emotional turmoil surrounding the parties’ separation, anticipated dissolution of their marriage, attempted reconciliation, and subsequent final separation and dissolution.

B.

We also reject wife’s argument that the trial court should have enforced the agreement as a separation agreement.

Section 14-10-112(1), C.R.S.2002, provides in pertinent part: “To promote the amicable settlement of disputes between the parties to a marriage attendant upon their separation or the dissolution of their marriage, the parties may enter into a written separation agreement....” An agreement is attendant upon separation or dissolution if it is executed under circumstances accompanying, connected with, or surrounding a contemplated dissolution or separation. In re Marriage of Bisque, supra.

Whether an agreement is executed “attendant upon” a contemplated dissolution is a question of fact for the trial court, and the court’s findings will not be set aside unless clearly erroneous. We review de novo the court’s legal conclusion that the agreement was not a separation agreement. C.R.C.P. 52; In re Marriage of Bisque, supra.

Here, the trial court found with record support that the purpose of the agreement was to facilitate reconciliation. Thus, the court found that the agreement was not attendant upon a contemplated dissolution or separation.

This finding is supported by the record and will not be disturbed on appeal. Accordingly, we agree with the trial court’s legal conclusion that the post-nuptial agreement was not a separation agreement.

C.

We further reject wife’s argument that the parties’ agreement was enforceable under general contract principles or based on the doctrines of promissory or equitable es-toppel.

These doctrines apply where, unlike here, the UDMA does not govern. See In re Marriage of Plesich, 881 P.2d 379 (Colo.App.1994)(policies sought to be furthered by UDMA take precedence over any concepts of contract law); cf. Salzman v. Bachrach, 996 P.2d 1263 (Colo.2000)(general contract laws and equitable rules apply to two cohabiting, unmarried individuals who may contract legally with one another and enforce the contract in court, so long as sexual relations are not the sole consideration for the agreement).

Similarly, in domestic relations matters, the doctrine of equitable estoppel is reserved for extraordinary circumstances, such as failed adoption proceedings. See, e.g., In re Marriage of Dennin, 811 P.2d 449 (Colo.App.1991). Here, in view of counsel’s admonition not to sign the agreement until the earlier dissolution action had been dismissed, wife did not demonstrate that she reasonably relied to her detriment upon the acts or representations of husband or that she had no knowledge or convenient means of knowing that the dissolution action was still pending when she signed the agreement. See In re Marriage of Smith, 7 P.3d 1012 (Colo.App.1999).

Finally, we are not persuaded that the trial court should have enforced husband’s alleged oral promises to transfer oil and gas interests to wife during the marriage or to contribute to her son’s medical school education. In re Marriage of Lemoine-Hofmann, 827 P.2d 587 (Colo.App.1992), relied on by wife, does not compel a contrary result. In that case, the court did not consider application of the Act, and, unlike here, the fact that an oral agreement had been made and the circumstances of the agreement were not disputed. Further, the court found in that case that the oral agreement was binding based on part performance. No such finding was made here with respect to the oil and gas interests.

As to husband’s alleged promise to contribute to the medical school education of wife’s son, the trial court here found with record support that this promise was not a binding contractual obligation, but only an assurance to assist while the family was intact. Because the family had dissolved by November 1996, we agree with the trial court that it was not required to enforce this alleged oral promise by husband.

Accordingly, we conclude that the trial court did not err in holding the agreement unenforceable.

II.

Wife also asserts that the trial court abused its discretion in limiting maintenance to seven years. She argues that the evidence did not support incremental decreases in the award and that the court should have reserved jurisdiction over the issue. We disagree.

The trial court has broad discretion in determining the amount and duration of a maintenance award. In re Marriage of Fisher, 931 P.2d 558 (Colo.App.1996). Absent an abuse of discretion, a trial court’s award of maintenance will not be reversed, and when the order is supported by competent evidence, it should not be disturbed on appeal. In re Marriage of Sim, 939 P.2d 504 (Colo.App.1997).

A trial court may retain jurisdiction over maintenance pursuant to § 14-10-114, C.R.S.2002, if, at the time of permanent orders, an important future contingency exists that can be resolved in a reasonable and specific period of time. In re Marriage of Folwell, 910 P.2d 91 (Colo.App.1995).

Here, the trial court found with record support that wife worked prior to the marriage in various administrative and management positions, had owned a small business, and held a securities license. The court also found that wife was unable to support herself with reasonable employment because she did not have the earning capacity that she would have had if she had worked during the sixteen-year marriage, when she did not work outside the home by agreement of the parties. The court found that wife wanted to further her education and should not be expected to undertake a new career immediately.

The court concluded that wife was without sufficient property to meet her reasonable needs until their Arrowhead residence sold. The court valued that residence at $1.9 million, awarded wife one-half of the net proceeds, and ordered that the closing be effected within six months of listing.

The award to wife of maintenance in the amount of $7500 per month for approximately two years and $5000 per month for an additional three years thereafter coincided with the duration requested by wife for maintenance. We conclude that the findings were sufficient to support the award of decreasing maintenance in increments, even though the court did not identify a specific incident that would occur after two years. See In re Marriage of Sim, supra (no difference between limiting the duration of maintenance to a specific term and awarding incremental decreases in maintenance before terminating it completely). Once the residence was sold, wife would have sufficient funds to meet her reasonable needs. Thus, it was to wife’s benefit that the first decrease in maintenance did not occur until well after the foreseeable precipitating event.

Contrary to wife’s contention, the court was not required to reserve jurisdiction over the issue of maintenance when, after sale of the residence and an additional period in which to reacclimate to working, wife would have sufficient means to satisfy her own needs. See In re Marriage of Folwell, supra.

Accordingly, we discern no abuse of discretion in the maintenance award.

III.

Wife also asserts that the trial court erred and violated her constitutional right to unrestrained speech by permanently restraining her from publishing the contents of an allegedly embarrassing audiotape of a telephone conversation between husband and another person. However, wife did not raise this issue in the trial court, and thus, we decline to address it on appeal. See Minto v. Lambert, 870 P.2d 572 (Colo.App.1993).

IV.

Wife next asserts that the trial court lacked the authority to order her not to amend tax; returns on which husband had signed her name. We disagree.

The federal tax code provisions do not deprive the dissolution court of jurisdiction to enter orders as between the parties. See Cohan v. Cohan, 150 Colo. 249, 372 P.2d 149 (1962) (court may consider the effect of state and federal income taxes on its contemplated award in a dissolution of marriage action); In re Marriage of Finer, 920 P.2d 325 (Colo.App.1996). The court may apportion tax liabilities assessed on the parties’ joint return in proportion to each party’s earned income for the relevant tax year, even though collection efforts by the Internal Revenue Service would be joint and several. In re Marriage of Tanous, 730 P.2d 907 (Colo.App.1986).

Here, the record shows that, prior to 1998, husband routinely signed the tax returns for wife. As part of the permanent orders, husband was obligated to pay any taxes, penalties, interest, and expenses that might be incurred as the result of an audit of any joint tax returns filed during the marriage. He was also ordered to indemnify and hold wife harmless from any such tax liability. Thus, the trial court’s ruling precluding wife from amending previously filed joint tax returns was within the court’s discretion and consistent with the parties’ prior practices and with the court’s allocation of responsibility for future tax liabilities.

V.

Wife also contends that the trial court abused its discretion in awarding husband the entire passive activity loss carry forward. We disagree.

The primary reference to this asset was made in closing arguments. The trial court found that the origin of the passive activity loss carry forward of $981,412 reported on the parties’ 1998 tax return was not clear and that neither party had cited any authority concerning that tax entry. The court concluded that it would treat that asset as an economic circumstance to be dealt with in an equitable division of property, see § 14-10-113(l)(c), C.R.S.2002, and in consideration of maintenance and attorney fees.

Based on the sparsity of the evidence and argument on this issue, we find no error. See In re Marriage of Zappanti 80 P.3d 889, 2003 WL 21403371 (Colo.App. No. 02CA0918, June 19, 2003)(it is the parties’ duty to present the trial court with requisite data to value and distribute property, and failure to do so does not provide grounds for appeal); cf. In re Marriage of Eisenhuth, 976 P.2d 896 (Colo.App.1999)(in reaching equitable division of marital property, the court is required to consider the evidence before it). Furthermore, in the absence of evidence to the contrary, the distribution of this asset was consistent with the court’s allocation of the marital tax liabilities.

VI.

Last, wife asserts that the trial court erred in determining that the closing of the Arrowhead residence must occur within six months of listing, unless the parties agreed otherwise. We disagree.

The mechanism employed by the trial court for dividing the marital estate is a matter within the court’s discretion, In re Marriage of Wormell, 697 P.2d 812 (Colo.App.1985), and the court has the discretion to impose conditions on the distribution of property. In re Marriage of Garcia, 638 P.2d 848 (Colo.App.1981).

Here, wife was allowed to continue to live in the residence, and husband was obligated to pay all carrying costs associated with it, such as utilities, maintenance, assessments, taxes, insurance, and related expenses pending sale. Such costs totaled approximately $1000 to $1200 per month. In its post-trial order, the court ordered that husband be reimbursed from the sales proceeds of the residence or the parties’ loft.

Because husband was responsible for the majority of the liability, we conclude that the court’s imposition of the condition to expedite the sale of the residence did not constitute an abuse of discretion. See In re Marriage of Wormell, supra.

The judgment is affirmed.

Judge TAUBMAN and Judge KAPELKE concur.


source: Caselaw Access Project

author: Judge DAILEY.

license: Public Domain

text:
    David A. CLINGER, Trustee for the Clinger Trust, Plaintiff-Appellant, v. Dr. Denzel F. HARTSHORN and Huntsman Camp, Inc., d/b/a Rocky Mountain Safaris, a Colorado corporation, Defendants-Appellees.
    No. 02CA1710.
    Colorado Court of Appeals, Div. I.
    Oct. 9, 2003.
    As Modified on Denial of Rehearing Dec. 11, 2003.

    Certiorari Denied May 10, 2004.

      Anne Whalen Gill, P.C., Anne Whalen Gill, Castle Rock, Colorado; Larry Curtis Smith, Denver, Colorado, for Plaintiff-Appellant.
    Hoskin Farina Aldrich & Kampf, P.C., Gregory K. Hoskin, Matthew G. Weber, Grand Junction, Colorado, for Defendants-Appellees.

       Ney, J„ does not participate.

   Opinion by

Judge DAILEY.

Plaintiff, David A. Clinger, Trustee for the Clinger Trust, appeals those parts of a judgment establishing a prescriptive easement for and awarding costs to defendants, Dr. Denzel F. Hartshorn and Huntsman Camp, Inc. We affirm.

I.

Plaintiff and Hartshorn own adjoining properties. Plaintiff acquired his property in 1982; Hartshorn acquired his property in 1983. In 1987, Hartshorn purchased a commercial outfitter and guide license for use in conjunction with his company, defendant Huntsman Camp. In 1989, the parties entered into a license agreement, under which Hartshorn was permitted, for three years, to use an access road crossing plaintiffs property for guide and outfitting purposes.

When defendants continued that use of the road following the expiration of the agreement, plaintiff initiated the present action, asserting claims for breach of contract, trespass, and declaratory and other relief regarding use of the road. In their answer to the complaint, defendants averred that they had a prescriptive right, by the acts of Harts-horn’s predecessors in title, to use the road for guide and outfitting business purposes; they also counterclaimed to remove an obstruction plaintiff placed on the road and to establish their right to use that road, instead of an alternate route plaintiff created to accommodate a nonparty mineral owner.

The parties stipulated that defendants had a prescriptive right to use the road to access Hartshorn’s property for farming and ranching purposes. They disputed, however, whether Hartshorn’s predecessors in interest had also acquired a prescriptive right to use the road to conduct a guide and outfitting business.

Pursuant to the parties’ agreement, the trial court decided plaintiff was not allowed to relocate Hartshorn’s easement, and that, consequently, he had to restore the road to a drivable condition.

At the close of trial, the jury returned verdicts (1) in favor of plaintiff, for $1, on his breach of contract claim; (2) in favor of defendants on plaintiffs trespass claim; (3) in favor of Hartshorn regarding the existence of a prescriptive easement to use the road for a guide and outfitting business; and (4) in favor of plaintiff, on Hartshorn’s asserted claim of an easement to use the road for a summer lodging business or for transportation of logs.

Subsequently, the court ordered that the cost of maintaining the road was to be divided equally or, depending upon the uses of the road, on a pro rata basis between plaintiff and Hartshorn. The court reduced its decisions, as well of those of the jury, to a written judgment, but reserved for the future the issue of the width of the easement.

Four and a half months later, plaintiff filed a motion for reconsideration of the order denying relocation of the easement based on newly discovered evidence. The trial court denied the motion because there was no showing that the new evidence could not have been produced at trial and because some of the new evidence concerned improvements plaintiff had made subsequent to the judgment.

Following an evidentiary hearing, the trial court fixed the width of the easement at eight feet on either side of its centerline, with no obstacles permitted within ten feet of its centerline, awarded costs to defendants, and reduced these decisions to a written supplemental judgment.

II.

Plaintiff contends that the evidence did not support a finding of prescriptive easement for a guide and outfitting business because (1) there was no evidence of continuous, open, and adverse use of the road for such a business for eighteen years; (2) there was no evidence that Hartshorn or his predecessors in interest were licensed to engage in that activity throughout a prescriptive eighteen-year period; and (3) in any event, Hartshorn abandoned any guide and outfitting easement by signing the 1989 license agreement. We disagree.

A.

An easement is an interest in property that, though distinct from an ownership interest in the land itself, nevertheless confers upon the holder of the easement an enforceable right to use property of another for specific purposes. An easement may be established in a number of ways, including by prescription. Wright v. Horse Creek Ranches, 697 P.2d 384, 387-88 (Colo.1985).

An easement by prescription is acquired when the use is open or notorious, continuous without effective interruption for an eighteen-year period, and either adverse or pursuant to an attempted but ineffective grant. Section 38-41-101, C.R.S.2002; Weisiger v. Harbour, 62 P.3d 1069, 1071 (Colo.App.2002).

To satisfy the open and notorious element, the use must be sufficiently obvious to apprise the owner of the servient estate, in the exercise of reasonable diligence, that another is making use of the burdened land so that the owner may object. However, actual knowledge by the owner need not be proved.

Weisiger v. Harbour, supra, 62 P.3d at 1073.

Further, “[ijntermittent use on a long-term basis satisfies the requirement for open, notorious, and continuous use,” and “[ujsing an easement for more than eighteen years entitles the holder to the presumption that the use was adverse.” Weisiger v. Harbour, supra, 62 P.3d at 1072, 1073.

On review, we must determine whether the evidence, viewed as a whole and in the light most favorable to the prevailing party, is sufficient to support the jury’s verdict. It is the sole province of the jury to resolve disputed issues of fact and to determine the credibility of the witnesses, the weight to be accorded the testimony, and the inferences to be drawn from the evidence. If there is competent evidence to support a jury verdict, we will not disturb it. Robinson v. City & County of Denver, 30 P.3d 677, 683 (Colo.App.2000).

Here, the jury determined, with record support, that Hartshorn indeed had a prescriptive easement over the old road “in connection with [his] guide and outfitting business ... based on the historical use made of the road during any 18 year period prior to October 20,1989.”

Three hunters testified that they had used the road to access Hartshorn’s property at regular intervals from 1942 until 1994. They recounted that they and groups of men paid Hartshorn’s predecessors in title for guide and outfitting services to hunt on the property.

One of Hartshorn’s predecessors in title testified that, while he owned the property from 1972 to 1983, he provided paid guide and outfitting services every year.

Neither the hunters, nor Hartshorn’s predecessor in title, sought or received permission to use the road from plaintiff or his predecessors in title.

Because the jury’s finding of a prescriptive easement is supported by this evidence, we will not disturb it.

Plaintiff asserts, however, that even if a prescriptive easement for this purpose existed, it did not encompass the degree of use exercised by defendants. We disagree.

The extent of a private prescriptive easement is “fixed by the use through which it was created.” Wright v. Horse Creek Ranches, supra, 697 P.2d at 388 (quoting Restatement (First) of Property § 477 (1944)). However, “the use under which a prescriptive interest arises determines [only] the general outlines rather than the minute details of the interest.” Restatement (First), supra, § 477 cmt. b.

In analyzing plaintiffs argument, we compare the original acquired use with the claimed additional use in terms of physical character, purpose, and the relative burden to the servient tenement. Hayes v. City of Loveland, 651 P.2d 466, 468 (Colo.App.1982)(citing Restatement (First), supra, § 478).

Here, the use acquired and the claimed additional use have the same purpose and physical character. The issue, then, turns on the relative burden on plaintiffs servient estate.

An increase in the burden on the servient tenement beyond that caused by the adverse use by which an easement was created is an undue increase if it is such an increase as, it may reasonably be assumed, would have provoked an interruption in the adverse use had the increase occurred during the prescriptive period.

Restatement (First), supra, § 478 cmt. d.

In this case, the easement had been established upon evidence showing use at times by groups of ten to twelve hunters for five days to two weeks.

Hartshorn’s current use of the easement potentially encompasses 350 hunter-days per year. Inasmuch as Hartshorn testified that the average hunter stays on his property five days, he could, on average, bring in only about seventy hunters a year.

Indeed, the record shows that Hartshorn’s current maximum capacity is fifteen hunters per season; the biggest group he has ever had in one season was eighteen hunters; his busiest year had fifty-eight hunters; and he calculated that his business can handle about sixty hunters per year spread over six hunting seasons.

At trial, plaintiff could only testify to episodic and isolated injury resulting from Hartshorn’s current use of the easement, and the jury did not find these injuries compelling when compared to the historic burdens on plaintiffs property.

In light of these circumstances, we are not persuaded that the increased burden to the servient estate from the change in degree of use is so substantial as to require limiting the extent of the easement. See Westland Nursing Home, Inc. v. Benson, 33 Colo.App. 245, 252-53, 517 P.2d 862, 867 (1974)(increased volume of traffic from increased use was not enough to forfeit a prescriptive easement where increased use was not unreasonable); see also Hayes, supra, 651 P.2d at 468 (easements can accommodate changes in degree, rather than kind).

Plaintiffs reliance on Wright v. Horse Creek Ranches, supra, is misplaced. There, the supreme court refused to permit recreational and residential use of an agricultural easement. See Wright v. Horse Creek Ranches, supra, 697 P.2d at 390. Wright is distinguishable, then, because it involved a change in kind, rather than in degree, of use.

Thus, we affirm the trial court’s ruling that defendants have established a prescriptive easement for their guide and outfitting business.

B.

Plaintiff also asserts that, because state and federal laws require licenses to engage in commercial guide and outfitting activities, defendants could not establish an easement by prescription without presenting evidence that Hartshorn’s predecessors in title had licenses for guide and outfitting activities. We disagree.

When this issue surfaced right before trial, defendants objected on timeliness grounds. We, like the trial court, elect to address the issue on its merits, and we, like the trial court, conclude that the issuance of a license is irrelevant to the acquisition of this particular prescriptive right.

Ordinarily, the legality or illegality of activity conducted on the benefited property, here, Hartshorn’s, is not a proper subject of inquiry when determining permissible uses under an access easement. Gillmor v. Wright, 850 P.2d 431, 438 (Utah 1993)(easement accessing property where hunting permits were issued for lands not zoned for hunting).

Plaintiff relies upon the following authorities: (1) part of Restatement (Third) of Property: Servitudes § 3.1 (2000), which provides that a “servitude created ... is valid unless it is illegal or unconstitutional or violates public policy”; and (2) People v. Perez, 192 Colo. 562, 566, 561 P.2d 7, 10 (1977), where the supreme court indicated that “[o]ne may not acquire the prescriptive right to perpetuate a public wrong.”

In our view, however, these authorities address the use to which an easement may be put, not the manner in which the easement was created or acquired. See Restatement (Third), supra, § 3.1 cmt. a at 348 (“The rules stated in this Chapter assume that there are no defects in the underlying transaction that created the servitude.... These rules address the question ... whether allowing the benefits or burdens to run with the land would create such risks of social harm that a servitude should not be permitted.”), cmt. e at 352 (“[a]n illegal servitude within the meaning of this section is one that is prohibited by a statute or governmental regulation,” listing examples of such laws and regulations), cmt. e at 355-56 (servitudes that violate public policy are those that “threaten unreasonably the socially productive use of land or the broader public welfare”).

Indeed, acceptance of plaintiffs argument would contravene the law of prescriptive easements, which permits acquisition of enforceable property rights through unlawful action, namely, trespass for the prescriptive period of time. For these reasons, we reject plaintiffs argument.

C.

We also reject plaintiffs assertion that Hartshorn abandoned any prescriptive easement he had when he signed a licensing agreement permitting him “to expand his use of the Road to include transporting employees, guests, and invitees ... as part of a hunting/outfitting operation.”

Abandonment must be established by clear, unequivocal, and decisive evidence, Rivera v. Queree, 145 Colo. 146, 149-50, 358 P.2d 40, 42 (1960), of affirmative acts on the part of the owner of the dominant estate manifesting an intention to abandon the easement. Gjovig v. Spino, 701 P.2d 1267, 1269 (Colo.App.1985).

Here, the jury was not compelled to conclude that, by executing the licensing agreement, Hartshorn abandoned his prescriptive easement. He could only abandon an easement that, at the time, he knew existed. See Tract Dev. Servs., Inc. v. Kepler, 199 Cal.App.3d 1374, 1385, 246 Cal.Rptr. 469, 476-77 (1988)(“If it is the case that [claimants] were in fact unaware of their right to a private easement, they could hardly be held to have ever intended, to abandon such a right.”); Sabins v. McAllister, 116 Vt. 302, 76 A.2d 106, 110 (1950)(“the finding to the effect that the defendants knew nothing about their right of way in the driveway until just prior to the bringing of this suit shows conclusively that the finding of abandonment was unwarranted”), overruled on other grounds by Lague, Inc. v. Royea, 152 Vt. 499, 568 A.2d 357, 359 (1989); cf. Weisiger v. Harbour, supra, 62 P.3d at 1073 (permissive use from 1989 to 1991 could be disregarded because a prescriptive easement was established by 1988).

III.

Plaintiff next contends that the trial court erred in not relocating the easement to the alternate route he created. We disagree.

In Roaring Fork Club, L.P. v. St. Jude’s Co., 36 P.3d 1229, 1234-37 (Colo.2001), the supreme court recognized that there “may be some circumstances” in which easement alterations “would work no harm to the benefited owner and would greatly serve the burdened owner.” The court thus accepted Restatement (Third), supra, § 4.8 as the correct statement of controlling legal principle for analyzing easement relocation issues. Under that approach, a burdened property owner may relocate an easement to maximize the use of his or her property, provided that such relocation does not damage the benefited estate. See Roaring Fork, supra, 36 P.3d at 1236.

Here, although the trial court did not have the benefit of Roaring Fork when it ruled, it based its decision on two seminal cases, namely, Brown v. Bradbury, 110 Colo. 537, 135 P.2d 1013 (1943), and Valley Development Co. v. Weeks, 147 Colo. 591, 364 P.2d 730 (1961). And the supreme court in Roaring Fork recognized that those cases “essentially applied the Restatement rule.” Roaring Fork, supra, 36 P.3d at 1236.

The trial court considered testimony regarding the benefits and burdens of relocating the easement. Defendants presented testimony that: (1) they had no problem getting up the original road; (2) they found the new route steeper and more difficult to take up truck loads, cattle, and horses; and (3) two of Hartshorn’s horses had been killed in an accident caused by the steep incliné of the new route.

Prom this evidence, the trial court could properly conclude that relocation was improper because of the increased burdens it imposed on Hartshorn’s use and enjoyment of the easement.

Further, we reject plaintiffs argument that the trial court was compelled to reconsider its ruling in light of the Roaring Fork decision and newly discovered evidence. First, as indicated above, although the trial court did not use Roaring Fork terminology, it used the essentials of a Roaring Fork analysis. Second, some of the newly discovered evidence concerned improvements plaintiff made to the new route after the court’s order requiring him to restore access to the original road. And third, there was no indication that the proffered newly discovered evidence could not have been presented at the evidentiary hearing held months earlier.

Under the circumstances, we cannot conclude that the trial court abused its discretion in determining not to revisit a matter for which an opportunity to fully litigate had been provided. See Verzuh v. Rouse, 660 P.2d 1301, 1303 (Colo.App.1982)(law of the case “is a rule of practice, based upon sound policy that when an issue is once litigated and decided, that should be the end of the matter,” quoting United States v. United States Smelting Refining & Mining Co., 339 U.S. 186, 70 S.Ct. 537, 94 L.Ed. 750 (1950)).

IV.

Next, plaintiff contends that the trial court erred in ruling that the easement was wide enough to accommodate two passing vehicles. Again, we disagree.

The trial court made its width determination based on the standard set out in Goluba v. Griffith, 830 P.2d 1090 (Colo.App.1991).

Plaintiff notes that Goluba concerned the width of a public easement rather than a private easement. Nonetheless, the standards for measuring the width of private and public easements are the same; they are both measured by the historic use based on the evidence. Compare Goluba v. Griffith, supra, 830 P.2d at 1091 (the width of a highway acquired by adverse use is a question of fact to be determined by the character and extent of the use), with Wright v. Horse Creek Ranches, supra, 697 P.2d at 388 (the extent of a private prescriptive easement is fixed by the use through which it was created).

Historic use of a width for two vehicles to pass each other, however, is established by proof not of such use every day but of such use as needed during the statutory prescriptive period. See Agric. Ditch & Reservoir Co. v. Gleason, 686 P.2d 802, 804, 807 (Colo.App.1984)(increasing the width of an easement to include additional feet for regular maintenance and repair), rev’d on other grounds sub nom. Hutson v. Agric. Ditch & Reservoir Co., 723 P.2d 736 (Colo.1986).

Applying these principles here, then, the width of Hartshorn’s easement for hunting access encompasses not only that part of the road frequently used, but also that part of the road regularly, albeit infrequently, used to accommodate bad road conditions and multiple vehicles.

Here, the trial judge visited the site and heard testimony from a surveyor and various individuals regarding both the current and historic width of the road and the frequency of passing vehicles.

A hunter who drove on the road nearly every other year from 1962 to 1994 with a pickup and trailer testified that he had to pass other vehicles the majority of years. Most of the time he would pass pickups, but he occasionally passed large trucks and stock trailers. He estimated that the road was about ten to twelve feet wide and about fifteen to eighteen feet wide when vehicles were passing.

Hartshorn’s predecessor in title testified that he drove on the road almost every week from about 1971 to 1983 and the road was about twelve feet wide. He testified that he had passed vehicles frequently during dry conditions and infrequently during wet conditions, and many places in the road were wide enough (eighteen or more feet) for two vehicles to pass.

Hartshorn’s ranch hand testified that he has been using the road since 1979, and during wet and muddy conditions, the road was about fifteen to twenty feet wide. He further testified that “literally all the road” was wide enough to accommodate two cars or small pickups passing.

Hartshorn testified that, from 1982 to about 1992, he passed vehicles infrequently, but when he did, the vehicles would slow down and pull off to the edge of the road to let him by; when conditions were muddy, vehicles would have to be driven outside the designated tracks to keep from sliding; and the width of the road was probably double in those muddy conditions. He believed the road to be, on average, about fifteen to twenty feet wide.

Plaintiff produced contradictory evidence, including, most prominently, the testimony of the surveyor that the road was only nine and a half feet wide. However, the surveyor was retained by plaintiff and acknowledged, on cross-examination, that plaintiff had instructed him to minimize the width of the road.

Determinations as to the credibility of witnesses and the weight to be afforded the evidence are issues committed to the sound discretion of the trial court as the trier of fact. Its findings must be accepted on review unless they are so clearly erroneous as not to find support in the record. Tiger v. Anderson, 976 P.2d 308, 310-11 (Colo.App.1998).

Because the trial court’s finding of a sixteen- to twenty-foot easement is supported by evidence, we will not disturb it.

V.

Plaintiff contends that the trial court erred in ordering him to assist in maintaining the road. We disagree.

Normally, Hartshorn, as the owner of the dominant estate, would have the right and responsibility to “do whatever is reasonably necessary for the enjoyment of the easement, including [making] repairs.” See Hayes v. City of Loveland, supra, 651 P.2d at 468. However, because, plaintiff trespassed upon Hartshorn’s easement by unjustifiably relocating it, the trial court could shift maintenance burdens and responsibilities to him. See Roaring Fork, supra, 36 P.3d at 1238.

Further, from the evidence presented at trial, it appears that plaintiff still uses the road for his own purposes. Under the circumstances, the trial court did not abuse its discretion in ordering the parties to divide the expense of maintaining the road on an equal or pro rata basis, depending upon the uses made of the road.

VI.

Finally, plaintiff contends that the trial court erred in awarding costs to defendants. We disagree.

“[U]nless there is a statute or rule that specifically prohibits an award of costs, trial courts may exercise their discretion to award any reasonable costs to a prevailing party.” Mackall v. Jalisco Int’l, Inc., 28 P.3d 975, 977 (Colo.App.2001). Awardable costs include those necessarily incurred by reason of the litigation and for the proper preparation for trial. Bainbridge, Inc. v. Douglas County Bd. of Comm’rs, 55 P.3d 271, 274 (Colo.App.2002).

Here, plaintiff asserts that defendants did not qualify as prevailing parties, because they lost more claims than they won during the course of the litigation. We are not persuaded.

The number of claims upon which a party prevails does not determine the prevailing party for purposes of assessing costs. “Rather, the prevailing party is the one that has succeeded on a significant issue and has achieved some of the benefits sought in the lawsuit.” Mackall, supra, 28 P.3d at 977.

The trial court found that defendants were the prevailing parties because the focal point of the litigation was the existence and the scope of the easement, upon which defendants, not plaintiff, prevailed. After reviewing the record, we agree with the trial court’s assessment.

Further, contrary to plaintiffs assertions, awardable costs encompass those incurred in deposing him and in presenting expert testimony. See Cherry Creek Sch. Dist. No. 5 v. Voelker, 859 P.2d 805, 813 (Colo.1993)(deposition costs); Wark v. McClellan, 68 P.3d 574, 583 (Colo.App.2003)(deposition costs); Mackall, supra, 28 P.3d at 977 (expert witness fees). Neither the statutes nor the case law requires that a witness be formally offered as an expert as a condition for recovering costs.

Consequently, we find no error in the trial court’s order awarding costs.

Accordingly, the judgment is affirmed.

Judge NEY and Judge LOEB concur.


author: Judge ROTHENBERG.

text:
    Ruby A. SANCHEZ, individually and as parent and next friend of Brittany Sanchez, Plaintiff-Appellee, v. AMERICAN STANDARD INSURANCE COMPANY OF WISCONSIN, Defendant-Appellant.
    No. 02CA1378.
    Colorado Court of Appeals, Div. II.
    Oct. 9, 2003.
    Certiorari Denied April 26, 2004.

      Kiel, Trueax, and Gold, PC, Gregory A. Gold, Greenwood Village, Colorado, for Plaintiff-Appellee.
    Harris, Karstaedt, Jamison and Powers, P.C., A. Peter Gregory, Rebecca K. Wagner, Englewood, Colorado, for Defendant-Appellant.
   Opinion by

Judge ROTHENBERG.

In this action concerning personal injury protection (PIP) benefits, defendant, American Standard Insurance Company of Wisconsin (the insurance company), appeals the trial court’s summary judgment in favor of plaintiffs, Brittany Sanchez and Ruby A. Sanchez (insureds). We reverse and remand with directions.

At issue in this appeal is the procedure an insurance company may use to review an insured’s post-accident medical treatment where the insurance policy limits treatment to a managed care plan, in this case a preferred provider organization (PPO), but the insured receives treatment exclusively outside that plan.

Insureds maintain that because they received treatment outside of the PPO, they are entitled to a review of that treatment under the PIP examination procedure (PIP examination) in the Colorado Auto Accident Reparations Act, § 10-4-701, et seq., C.R.S. 2002, rather than a medical review by á doctor within the PPO (PPO review). Insureds assert that a PPO review is not an independent or objective review because only the insurance company selects the reviewing physician, whereas the PIP examination procedure requires that the treating physician be selected through a statutory procedure in which insureds take part.

The insurance company contends that insureds’ unilateral decision to receive treatment outside the PPO does not affect its ability, under the insurance policy, to select the means of reviewing insureds’ medical treatment and that it has the option to select a PIP examination or a PPO review. We agree with the insurance company’s position.

I.

In September 2000, insureds were injured in an automobile accident caused by another driver. Insured Ruby Sanchez is the holder of an automobile insurance policy through the insurance company that provides PIP benefits. Under this policy, insureds were entitled to receive PIP medical coverage through a PPO. Any -treatment outside the PPO had to be preapproved by the insurance company.

It is undisputed that insureds sought and received treatment from a medical specialist outside the PPO without obtaining preappro-val by the insurance company.

After paying a portion of the treatment costs, the insurance company notified insureds in October 2000 that a $2,500 deductible applied to each injured party for treatment outside the PPO. There is no evidence in the record indicating whether the deductible has been invoiced or paid.

In December 2000, the insurance company demanded that insureds be examined by a doctor within the PPO .for a PPO review.

Insureds refused to attend the scheduled PPO medical review and requested a PIP examination. To support their position, insureds sent the insurance company a copy of an order in an unrelated case against the insurance company’s sister company. The trial court in that case ruled that the insured had “opted out” of her managed care plan when she no longer received any treatment within that plan. The court ruled that she was entitled to a PIP examination under § 10-4-706(6)(c), C.R.S.2002, and was not required to submit to the PPO review.

In January 2001, the insurance company here suspended insureds’ PIP benefit payments based on their refusal to submit to the PPO review.

In June 2001, insureds filed this action against the insurance company for wrongful withholding of PIP benefits based on breach of contract and bad faith breach of an insurance contract. The parties filed cross-motions for summary judgment.

The trial court granted insureds’ motion and entered summary judgment in their favor, after concluding that: (1) the insurance policy provided for a $2,500 deductible to obtain treatment outside the PPO; (2) insureds’ agreement to this deductible allowed them to remove the “shackles” of managed care; (3) insureds elected to seek treatment completely outside the PPO and thereby “opted out” of the plan; (4) by operation of Colorado Division of Insurance Regulation 5-2 — 9(C)(7), 3 Code Colo. Regs., insureds’ PIP coverage was no longer provided through the PPO; (5) the Division of Insurance interpretive bulletins upon which the insurance company relied were not binding; (6) the insurance company was not entitled to require insureds to submit to a PPO review; and (7) insureds could therefore demand a PIP examination.

Upon the parties’ stipulation, the trial court entered final judgment on all claims.

II.

The insurance company contends the trial court erred in granting partial summary judgment in favor of insureds. We agree.

A.

We review the grant of a summary judgment motion de novo. West Elk Ranch, L.L.C. v. United States, 65 P.3d 479 (Colo.2002).

Summary judgment is appropriate when the pleadings and supporting documentation demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. The nonmoving party is entitled to the benefit of all favorable inferences from the undisputed facts, and all doubts as to the existence of a triable issue of fact must be resolved against the moving party. C.R.C.P. 56(c); West Elk Ranch, L.L.C. v. United States, supra.

B.

The purpose of the Colorado Auto Accident Reparations Act, as relevant here, is to avoid inadequate compensation to victims of automobile accidents. Section 10-4-702, C.R.S.2002. The Act serves to maximize insurance coverage and is to be liberally construed to further its remedial and beneficent purposes. State Farm Mut. Auto. Ins. Co. v. Peiffer, 955 P.2d 1008 (Colo.1998).

In 2003, the General Assembly amended the Act, but the provisions at issue here remain the same. See Colo. Sess. Laws 2003, ch. 315, § 10-4-706 at 1983.

The Act requires insurance companies to pay PIP benefits to cover post-injury medical expenses for treatments that are reasonable, necessary, and accident related. Adams v. Farmers Ins. Group, 983 P.2d 797 (Colo.1999). Section 10-4-706(6), C.R.S.2002, establishes the PIP examination program, which is intended to provide timely investigation and resolution of disputed PIP claims submitted to an insurance company. The PIP examination determines whether the insured’s treatment is reasonable, necessary, and accident related. Section 10-4-706(6)(e), C.R.S.2002; see Adams v. Farmers Ins. Group, supra.

The Act makes general provisions regarding review of PIP benefits, but distinguishes circumstances in which an insurance company provides PIP benefits through a “managed care arrangement.” See § 10-4-706(2)(a)(I), C.R.S.2002 (an insurance company may offer PIP benefits for a lower premium through managed care arrangements). Managed care arrangements include a PPO. Section 10 — 4—706(2) (a) (I).

Generally, the PIP examination program is the “exclusive method for obtaining an independent medical examination from a health care practitioner other than a treating provider relating to a disputed PIP claim.” Section 10-4-706(6)(a). Section 10-4-706(6)(c) confers upon any insurance company, insured, or injured person entitled to benefits the “right” to obtain a PIP examination, but that “right” does not apply to an insurance company providing PIP coverage through a managed care arrangement. Section 10-4-706(6)(c) also provides that “[njothing in this section shall preclude a managed care organization from using its usual and customary review procedures.”

An insurance company providing PIP benefits through a managed care arrangement must file its internal grievance and review procedures with the insurance commissioner. Once all internal grievance and review procedures have been exhausted, the insurer must provide written notice to the insured of the insured’s right to seek a PIP examination. Section 10 — 4—706(2)(j)(I), C.R.S.2002.

However, the Act does not address the circumstances before us in which an insured contracts for benefits through a managed care plan, but seeks treatment exclusively outside the plan.

C.

The Colorado Administrative Procedure Act sets forth rulemaking procedures, which include notice and a hearing. See § 24-4-103, C.R.S.2002. However, the statutory rulemaking requirements do not apply to “interpretative rules or general statements of policy, which are not meant to be binding as rules.” Section 24-4-103(1), C.R.S.2002.

An interpretative rule serves the advisory function of explaining the meaning of a phrase in a statute or other rule and describes the factors an agency will consider in future administrative proceedings, but does not bind the agency to a particular result. In contrast, an administrative rule based on an agency’s statutory authority to promulgate a substantive standard that carries the force of law is a legislative or substantive rule. An agency’s own eharacterization of a particular rule is some indication of the nature of the rule. Regular Route Common Carrier Conference v. Pub. Utils. Comm’n, 761 P.2d 737 (Colo.1988).

An administrative regulation must further the will of the General Assembly and may not modify or contravene an existing statute. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Colo. Div. of Ins. v. Midwest Mut. Ins. Co., 961 P.2d 1158 (Colo.App.1998).

When the meaning of an administrative regulation is in question, the agency’s own interpretation is given great weight unless it would be inconsistent with the regulation itself. Regular Route Common Carrier Conference v. Pub. Util. Comm’n, supra; Morgan v. Colo. Dep’t of Health Care Policy & Fin., 56 P.3d 1136 (Colo.App.2002)(an agency’s interpretation of a rule that it is charged with enforcing is generally entitled to deference); see Colo. Div. of Ins. v. Midwest Mut. Ins. Co., supra (addressing interpretation adopted by interpretive bulletin, as incorporated into regulation); see also Mem’l Trusts, Inc. v. Beery, 144 Colo. 448, 356 P.2d 884 (1960)(analyzing bulletin under same standard as regulation and invalidating bulletin where language was not sufficiently explicit).

D.

The Colorado Division of Insurance regulations at issue here were promulgated under the authority of §§ 10-1-109 and 10-4-706(2)(g), C.R.S.2002. Regulation 5-2-9(C)(1) states that “an insurer, other than an insurer using a managed care plan, shall obtain any PIP examination through the PIP examination program.” See § 10-4-706(6)(e) (insurers providing PIP coverage through managed care arrangements excepted from PIP examination program).

Where the insurance company provides PIP coverage through a managed care arrangement, Regulation 5 — 2—9(C)(6) states:

An injured party under a managed care plan may request a PIP examination only after exhausting all internal grievance and review procedures available under the plan. Once all internal grievance and review procedures have been exhausted, the insurer shall provide written notice to the injured party of the injured party’s right to seek a PIP examination. In the event that no internal grievance and review procedures are available under the managed care plan, the injured party has the right to request a PIP examination upon denial of the claim by the insurer.

See § 10 — 4—706(2)(j)(I) (once managed care plan’s internal grievance and review procedures have been exhausted, the insurance company must provide notice of the insured’s right to seek a PIP examination).

However, “[i]f an injured party who elected to receive benefits pursuant to a managed care plan chooses to be treated exclusively outside the network, the PIP benefits are no longer being provided through a managed care arrangement and the insurer is entitled to obtain a PIP [examination].” Reg. 5-2-9(C)(7).

Treatment exclusively outside the network means “treatment the injured party elects to receive outside the network, after treating both inside and outside the network for a period of time, without returning to a network provider.” Reg. 5 — 2—9(C)(7).

E.

Here, the medical expense coverage provision in the insurance policy reads, in pertinent part:

We [the insurance company] reserve the right to determine, or to have someone on our behalf determine, whether any treatment is medically appropriate and necessary, and whether any charge incurred is fair, usual and customary. We also reserve the right to use managed medical care approaches and treatment options where appropriate, and to determine the medical necessity of proposed or incurred treatment plans.

(Emphasis omitted.)

The PIP endorsement states:

We will pay, in accordance with the Colorado Auto Accident Reparations Act, [§ 10-4-701, et seq.,] personal injury protection benefits for [medical expenses] incurred for bodily injury to an eligible injured person caused by an accident due to the use or operation of a motor vehicle. Medical expenses incurred through other than the [PPO] and not preapproved by us shall cause benefits payable under your policy to be reduced.... The insured party shall be responsible for the remaining balance owed to any non-participating provider(s) up to a maximum aggregate of $2,500 per person, per accident.

(Emphasis omitted.)

The insurance policy provides for an internal review process. The policy states that the insurance company’s designated health care review agency “will pre-authorize, monitor, and review the appropriateness of health care services” in connection with personal injuries from an automobile accident, and the insured “shall cooperate with [the insurance company] in such review process.”

It is undisputed that insureds received treatment “exclusively outside the network,” and therefore, insureds’ PIP benefits were no longer provided through a managed care arrangement. Reg. 5-2-9(C)(7). It follows that § 10-4-706(6)(c) — -which precludes an insurance company that provides PIP benefits through a managed care arrangement from obtaining a PIP examination — no longer bars the insurance company from obtaining a PIP examination.

We interpret the statute to harmonize it with the applicable regulations and therefore hold that the insurance company may elect either the PIP examination or the PPO review procedure. In other words, we conclude the insurance company had the “right” or entitlement to obtain a PIP examination. See § l(M-706(6)(c); see also Reg. § 5-2-9(C)(1). We further conclude the insurance company’s “right” or entitlement to a PIP examination did not preclude the insurer from also using the PPO review.

Our interpretation is also consistent with the agency’s own interpretations.

Bulletin 12-2000 was issued by the Commissioner of Insurance “to provide answers to questions arising in administering the personal injury protection (PIP) examination program,” and to “provide guidance ... regarding the administration and process of the PIP examination program pursuant to § 10^4 — 706.6, C.R.S. [sic] and Regulation 5-2-9.” Colo. Div. of Ins. Bulletin 12-2000, §§ III.

The insurance company relies on the following language from the bulletin:

[Question No. 6:] Can an insurer use the PPO review process to deny further treatment from a non-PPO provider?
Answer: Yes, the insurer can use the PPO review process to deny further treatment from a non-PPO provider. The contract provisions are not waived because the claimant treats outside the PPO network.

The bulletin also states: (1) a claimant who has selected a PPO option must exhaust the PPO complaint procedures before requesting a PIP examination; (2) an insurance company may request a PIP examination if a claimant who has selected a PPO option is treating outside the PPO; (3) in such a case, the insurance company may require the insured to be examined in accordance with the insurance contract provisions and PPO procedures; and (4) an insurance company cannot deny PIP benefits to an insured who receives treatment outside the PPO, but “may obtain a PIP examination pursuant to Regulation 5-2-9.”

The trial court acknowledged the language in Bulletin 12-2000, but reasoned that it was an interpretive rule and not adopted through the Administrative Procedure Act’s notice and hearing provision, § 24-4-103. Thus, the trial court concluded it was not a binding regulation.

While we agree the bulletin was not binding, we generally defer to the agency’s own interpretations, even if nonbinding, so long as they do not modify or contravene an existing statute. See Morgan v. Colo. Dep’t of Health Care Policy & Fin., supra.

Here, we perceive no conflict between the agency’s interpretations in the regulations and the bulletin. The bulletin explains that an insurance company may use its PPO review process to deny further treatment from a non-PPO provider, that an insurance company “may” request a PIP examination, and that an insured’s treatment outside the PPO does not waive other policy provisions such as internal review procedures. These interpretations by the agency are reconcilable with the exhaustion requirement and recognize that PIP benefits for treatment received exclusively outside the PPO are “no longer provided through a managed care arrangement.” See § 10 — 4—706(2)(j)(I); Reg. 5-2-9(C)(7).

We thus conclude, contrary to insureds’ contention, that the agency’s interpretations are consistent with the terms of the statutory scheme. We further note that the agency’s interpretations have remained consistent. The deposition of the special assistant to the Commissioner of Insurance, included in the record, clarifies the Commissioner’s position that when an insured receives treatment exclusively outside the PPO, the insurance company may, at its option, use the PIP examination process, but is not required to do so. The assistant explained that the position of the Division of Insurance is that the insurance company has the choice to select either the PIP examination process or its PPO review process.

There is also evidence in the record concerning a separate case involving the same insurance company. In October 2000, the Division of Insurance informed the insured in that case that “the law allows [the insurance company] to exhaust the internal grievance and review procedures available under the managed care organization according to the [insured’s] PPO endorsement.” The letter stated: “Once the PPO grievance and review procedures are exhausted, if [the insured] still disagrees with the insurance company’s determination, [the insured] may request and pay for an independent medical examination.”

We acknowledge insureds’ argument that the insurance company’s ability to use the PPO review defeats the benefit of their bargain to receive treatment outside the PPO. However, the insurance policy limits insureds’ liability to the non-PPO treatment providers to a maximum of $2,500 per person, per accident. Further, insureds are not precluded from obtaining a PIP review, but they are required first to exhaust the PPO procedure, the relevant review procedure contained in the insurance policy. See § 10-4-706(2)(j)(D; Reg. 5-2-9(C)(6).

In summary, we conclude that where, as here, the insurance policy limits the insureds’ PIP benefits to treatment within a managed care plan such as a PPO, the unilateral decision of the insureds to receive treatment outside the managed care plan does not preclude the insurance company’s ability under the insurance policy to select the means of reviewing insureds’ medical treatment. The insurance company has the option to select the PIP examination procedure or its PPO review process. Accordingly, the trial court erred in granting partial summary judgment in favor of the insureds.

The partial summary judgment entered in favor of insureds is reversed, and the case is remanded with directions to enter judgment in favor of the insurance company, in accordance with the views expressed in this opinion.

Judge MARQUEZ and Judge GRAHAM concur.


text:
    Billea AMES, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE OF THE STATE OF COLORADO and Pueblo County, Respondents.
    No. 02CA1895.
    Colorado Court of Appeals, Div. V.
    Oct. 23, 2003.
    Certiorari Denied May 3, 2004.

      Steven U. Mullens, P.C., Steven U. Mul-lens, Pueblo, Colorado, for Petitioner.
    Ken Salazar, Attorney General, Eric S. Rothaus, Assistant Attorney General, Denver, Colorado, for Respondent Industrial Claim Appeals Office.
    Dworkin, Chambers, and Williams, P.C., Margaret Bauder Garcia, Denver, Colorado, for Respondent Pueblo County.
   Opinion by

Judge ROTHENBERG.

In this workers’ compensation case, Billea Ames (claimant) seeks review of an order of the Industrial Claim Appeals Office (Panel) denying her request to change the physician whom Pueblo County (employer) authorized to treat her industrial injury. We set the order aside and remand for further proceedings.

Claimant sustained an admitted injury while working as a detention officer with the sheriffs department, and she was placed under the care of an authorized physician in connection with that injury.

Thereafter, claimant requested a change in the authorized treating physician, alleging that he had acted in an unprofessional manner by disclosing confidential information about her to her coworkers. Employer denied the request for change of physician, and claimant requested a hearing on the issue.

At the time of her request, the treating physician had not placed claimant at maximum medical improvement (MMI). However, after claimant’s request for a change of physicians, but before the hearing, the authorized treating physician placed her at MMI with a nineteen percent whole person impairment. When claimant was placed at MMI, employer requested a division-sponsored independent medical examination (DIME) on the issue of impairment, and claimant was permitted to add the issue of MMI to employer’s DIME request.

At the outset of the hearing, the ALJ concluded she lacked jurisdiction to hear claimant’s request for a change of physician because a DIME was pending on the issue of MMI. Relying on Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App.1995), the ALJ reasoned that at the time of the hearing, no request for post-MMI medical benefits was pending, and that the finding of MMI had ended claimant’s entitlement to further treatment to cure and relieve the effects of her injury. See Whiteside v. Smith, 67 P.3d 1240, 1245 (Colo.2003)(“medical treatment automatically terminate^] if the treating physician determines that the claimant has reached MMI”).

The ALJ thus concluded there was nothing to change because claimant was not currently being treated. On review, the Panel affirmed.

Claimant contends the ALJ erred in concluding she lacked jurisdiction to consider the request to change physicians and the Panel erred in upholding that ruling. We agree.

In Story, the claimant was placed at MMI by one of her treating physicians, and she was released with no evidence of permanent impairment. The claimant later requested additional medical benefits and a change in treating physicians, and she filed a motion for a hearing. She also sought to add the issue of whether she was “in need of additional treatment” because she “ha[d] not reached maximum medical improvement.” Story v. Indus. Claim Appeals Office, supra, 910 P.2d at 81.

At the hearing, the ALJ found the claimant was in need of continued medical care and granted her request for a change in physicians. The Panel set aside the order, concluding “the ALJ had, in effect, determined that claimant had not reached MMI, but had exceeded her jurisdiction in making such a determination because no [DIME] was conducted as required [by § 8-42-107(8)(b), C.R.S.2002]” (requiring that the authorized physician who has provided the primary care shall determine when the injured employee reaches MMI, and that if MMI is disputed, a DIME shall be conducted).

A division of this court agreed with the Panel that an injured claimant may not circumvent the DIME procedures by seeking a change of physician after attaining MMI. As relevant here, the division reasoned that to the extent the claimant was seeking a change in physicians “to obtain treatment for purposes of further curing her injury, i.e., reaching MMI,” the claimant was making a “constructive challenge” to the authorized physician’s determination of MMI. Story v. Indus. Claim Appeals Office, supra, 910 P.2d at 82.

However, the concerns that arose in Story do not exist here because, on its face, claimant’s request for change of physician was based solely on nonmedical reasons involving the alleged unprofessional behavior of her treating physician. Further, claimant had not been placed at MMI when she made her request, and there is no evidence to suggest she was attempting to circumvent the treating physician’s finding regarding MMI. And given her allegation of unprofessional conduct, the treating physician should not have made a determination of MMI prior to the hearing.

Accordingly, we agree with claimant that where, as here, the request to change physicians was made before she was placed at MMI and was based solely on the treating physician’s nonmedical conduct, it was not a challenge to the treating physician’s determination of MMI, and Story did not preclude the ALJ and the Panel from granting a change of authorized physician. See also § 8-43-501(1), (2)(a), C.R.S.2002 (providing a “claimant may request a review of services” regarding whether treatment is “reasonably appropriate according to accepted professional standards”). We therefore conclude the ALJ had authority to hear the claimant’s request for a change in physicians.

The order is set aside and the case is remanded for further proceedings in accordance with the views in this opinion.

Judge VOGT and Judge CARPARELLI concur.


author: Judge HUME.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kelly Lee CLEMONS, Defendant-Appellant.
    No. 01CA2346.
    Colorado Court of Appeals, Div. A.
    Oct. 23, 2003.
    Certiorari Denied May 10, 2004.

      Ken Salazar, Attorney General, Laurie A. Booras, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Samler and Whitson, P.C., Eric A. Samler, Hollis A. Whitson, Denver, Colorado, for De-fendan1>-Appellant.
   Opinion by

Judge HUME.

Defendant, Kelly Lee Clemons, appeals the judgment of conviction entered upon jury verdicts finding him guilty of attempted manslaughter, second degree kidnapping of a robbery victim, aggravated robbery, first degree assault, and first degree aggravated motor vehicle theft. We affirm.

I.

Defendant first argues that the evidence is insufficient to support the jury’s verdict finding him guilty of aggravated robbery. More specifically, defendant asserts that the evidence does not establish that he took a thing of value from the person and presence of the victim, as the jury instruction mistakenly defined the offense. We are not persuaded.

A.

As an initial matter, we reject the People’s assertion that defendant is precluded from raising this claim because his attorney made a binding judicial admission of guilt in closing argument. Even if we were persuaded that an argument by counsel could constitute a binding judicial admission as to the elements of a substantive offense, we would still reject the People’s assertion in this ease because the record shows that defense counsel made no such admission.

B.

“A person who knowingly takes anything of value from the person or presence of another by the use of force, threats, or intimidation commits robbery.” Section 18 — 4— 301(1), C.R.S.2002 (emphasis added). And, as relevant here, “[a] person who commits robbery is guilty of aggravated robbery if during the act of robbery or immediate flight therefrom ... [h]e is armed with a deadly weapon with intent, if resisted, to kill, maim, or wound the person robbed or any other person.” Section 18-4-302(l)(a), C.R.S.2002.

Contrary to defendant’s assertion, the instruction defining aggravated robbery as requiring that the property be taken from the “person and presence” of the victim did not lower the prosecution’s burden of proof beyond the statutory requirement that the property be taken from “the person or presence” of the victim.

Although the instruction in this case unnecessarily used the conjunction “and” between the alternative means of establishing this single element of aggravated robbery, the jury’s general verdict may be sustained based solely on its finding that defendant took something of value from the victim’s presence if that finding is supported by the evidence, because nothing more is required by the statute defining the offense. See People v. Pineda, 40 P.3d 60, 66 (Colo.App.2001)(where general verdict is returned based on an instruction setting forth two alternative methods of establishing a single element, the requirement of James v. People, 727 P.2d 850 (Colo.1986), that alternative elements in a general verdict must both be supported by sufficient evidence does not apply); People v. Hanson, 928 P.2d 776 (Colo.App.l996)(same).

Therefore, the jury’s additional finding that defendant took something of value from the victim’s person is a superfluous determination, and we need not decide whether it is supported by the evidence. See Carlson v. People, 91 Colo. 418, 429-30, 15 P.2d 625, 629 (1932)(“[o]rdinarily, an instruction in the language of the statute is sufficient,” and “[tjhose parts that are not applicable may be considered mere surplusage, unless ... they tend to mislead the jury”).

C.

In reviewing an insufficiency of the evidence claim, we view the evidence presented as a whole and in the light most favorable to the prosecution to determine whether it is sufficient to support a conclusion by a reasonable person that the defendant is guilty beyond a reasonable doubt. In this regard, the prosecution is entitled to the benefit of every reasonable inference that might be fairly drawn from the evidence. Kogan v. People, 756 P.2d 945 (Colo.1988).

The evidence in this case, when viewed according to the foregoing standards, establishes the following facts. On the evening in question, the victim was working as the front desk clerk of a motel where defendant was employed as a security guard and maintenance man. As part of her duties, the victim was responsible for the cash register located in the motel lobby.

The victim was working in the laundry room adjacent to the lobby when defendant approached her and asked whether she would help him move an item in his apartment on the second floor of the motel. The victim agreed to help defendant and followed him upstairs. When the victim entered defendant’s apartment, he told her that the item was in a closet. As the victim walked toward the closet, defendant attacked her from behind' and pushed her into the closet. Defendant choked the victim, cut her with a knife, threatened to kill her, and told her that he wanted to tie her up. The victim resisted until defendant stabbed her in the leg, at which point she agreed to be bound. Defendant tied the victim’s hands, placed a gag over her mouth, and left her in the closet.

Defendant then took over $500 from the cash register in the lobby and fled from the scene in a truck that belonged to the owner of the motel.

In People v. Bartowsheski, 661 P.2d 235, 244-45 (Colo.1983), the supreme court established the analytical framework for determining the meaning of “presence” for purposes of the robbery and aggravated robbery statutes. The court there noted that “presence” in the context of robbery “is not so much a matter of eyesight as it is one of proximity and control: the property taken in the robbery must be close enough to the victim and sufficiently under [her] control that, had [she] not been subjected to violence or intimidation by the robber, [she] could have prevented the taking” (quoting W. LaFave & A. Scott, Handbook on Criminal Law § 94, at 696 (1972)). The supreme court’s reasoning in Bartowsheski is dispositive of this case.

Here, the trial evidence was sufficient to establish that the victim had control of the cash register and its contents. See People v. Marquez, 692 P.2d 1089, 1097 (Colo.1984)(ev-idence was sufficient to support robbery conviction of motel clerk where defendant took money from the cash drawer of the motel), rejected on other grounds by James v. People, supra; see also People v. Borghesi, 66 P.3d 93, 101 (Colo.2003)(“Proof of ownership of the property taken is immaterial [in a robbery case] so long as the victim had sufficient control over it at the time of the taking”).

In our view, it is immaterial that the victim was not in the motel lobby when defendant used force to take away her control of the cash register. Defendant’s conduct— luring the victim to his apartment and attacking her there in order to steal the money from the cash drawer located in the lobby — is virtually identical to that of the hypothetical robber described in Bartowsheski. Accordingly, we conclude the evidence was sufficient to prove that defendant took something of value from the presence of the victim by the use of force while armed with a deadly weapon and while acting with the intent, if resisted, to kill, maim, or wound the victim.

In light of our conclusion that there is sufficient evidence to sustain defendant’s conviction for aggravated robbery, we necessarily also reject his derivative claim that, because no robbery was proved, the evidence is insufficient to support the jury’s verdict finding him guilty of second degree kidnapping of a robbery victim.

II.

Defendant next argues that the evidence is insufficient to support the jury’s verdict finding him guilty of first degree aggravated motor vehicle theft. Again, we disagree.

As relevant here, “[a] person commits aggravated motor vehicle theft in the first degree if he or she knowingly obtains or exercises control over the motor vehicle of another without authorization or by threat or deception” and causes $500 or more of property damage. Section 18^⅛ — 409(2)(e), C.R.S.2002.

Although the statute specifies that the prosecution need only prove that the defendant obtained the vehicle “without authorization or by threat or deception,” the jury instruction in this case stated the alternative methods of establishing this single element in the conjunctive, as follows: “without authorization and by threat and deception” (emphasis added).

Relying on this error in the instructions, defendant argues that the jury’s verdict must be set aside because the prosecution failed to present any evidence showing that he took the truck from the motel owner by means of threat and deception. We reject this argument for the reasons set forth in the preceding section. See Carlson v. People, supra; People v. Pineda, supra; People v. Hanson, supra. Hence, because there was ample evidence proving that defendant took the motel owner’s truck without authorization, we conclude the evidence is sufficient to support the jury’s verdict.

in.

Finally, defendant contends the prosecutor committed reversible error in closing argument by paraphrasing Edmund Burke’s statement that “the only thing necessary for the triumph of evil is for good men to stand by and do nothing,” characterizing defendant’s actions as “evil,” and then urging the jury not to “stand by and do nothing.” Although we agree that these remarks were improper as used here, we conclude the error was harmless.

A prosecutor should not use arguments calculated to inflame the passion or prejudices of the jury. Thus, arguments urging a jury to convict in order to carry out the wishes of the community are improper. See Wilson v. People, 743 P.2d 415, 420 n. 8 (Colo.1987).

However, an instance of improper argument must be evaluated in the context of the prosecutor’s argument as a whole and in light of the evidence. Errors that do not substantially influence the verdict or affect the fairness of the proceedings may be deemed harmless. Crim. P. 52(a); People v. Griffith, 58 P.3d 1111, 1113 (Colo.App.2002).

We agree with defendant that the prosecutor’s use of this quotation was an improper attempt to persuade the jurors to convict defendant in order to combat evil for the community. However, this quotation was an isolated incident in an otherwise proper closing argument in which the prosecutor repeatedly urged the jury to apply the rules of law to the evidence adduced at trial. Accordingly, we are convinced that this error was harmless. See Loaiza v. State, 186 Ga. App. 72, 74, 366 S.E.2d 404, 406 (1988)(no reversible error where trial court sustained defendant’s objection to prosecutor’s use of this Burke quote in closing argument, but denied mistrial motion); Commonwealth v. Davis, 38 Mass.App.Ct. 932, 934, 646 N.E.2d 1093, 1095 (1995)(prosecutor’s use of this Burke quote in closing argument, to which defendant objected, did not require reversal); People v. Williams, 453 N.W.2d 675 (Mich.1990)(prosecutor’s use of this Burke quote in closing argument did not require reversal); State v. Stufflebean, 329 N.W.2d 314 (Minn.1983)(prosecutor’s use of this Burke quote not reversible error); cf. State v. Prevatte, 356 N.C. 178, 264, 570 S.E.2d 440, 488 (2002)(prosecutor’s use of this Burke quote in closing argument was proper); see also Trujillo v. State, 44 P.3d 22, 26 (Wyo.2002)(prosecutor’s use of this Burke quote in closing argument was an inappropriate rhetorical device but not plain error). But see State v. Mills, 57 Conn.App. 202, 213, 748 A.2d 318, 325 (2000)(reversing defendant’s conviction where prosecutor used this Burke quote in closing argument, but also emphasizing numerous other instances of serious misconduct in the prosecutor’s closing argument).

The judgment is affirmed.

Chief Judge DAVIDSON and Judge WEBB concur.

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


author: Judge GRAHAM.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jesus Bernardo FONTES, Defendant-Appellant.
    No. 02CA0395.
    Colorado Court of Appeals, Div. II.
    Nov. 6, 2003.
    Rehearing Denied Dec. 18, 2003.
    Certiorari Denied May 10, 2004.

      Ken Salazar, Attorney General, Jennifer M. Smith, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Andrea R. Manning, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge GRAHAM.

Defendant, Jesus Bernardo Fontes, appeals the judgment of conviction entered on a jury verdict finding him guilty of forgery, a class five felony; criminal impersonation, a class six felony; and misdemeanor theft. We affirm.

Defendant was arrested after he presented a false identification card to a convenience store clerk and attempted to cash a forged payroll check in the amount of $454.75. At trial, his wife testified for the prosecution and stated that defendant had intended to use the money from the check to buy food for the couple’s children.

After the wife’s testimony was completed, the trial court determined that it was subject to the marital privilege law, § 13-90-107(l)(a), C.R.S.2003. The court struck the testimony from the record and ordered the jury to disregard it. The court refused defendant’s request for a choice of evils instruction, and it also refused to let him present any evidence that his concern for his children’s welfare compelled his crimes.

Defendant presented no evidence, but argued that he could not be guilty of the crimes charged because he lacked the requisite intent. The trial court denied defendant’s motion for a new trial, and this appeal followed.

I.

Defendant contends that the trial court erred by refusing his request to instruct the jury on the affirmative defense of choice of evils and by refusing to accept the argument as a general defense. We disagree.

Choice of evils is a statutory defense applicable when the alleged crimes were necessary as an emergency measure to avoid an imminent public or private injury that is about to occur by reason of a situation occasioned or developed through no conduct of the actor and which is of sufficient gravity to outweigh the criminal conduct. Section 18-1-702(1), C.R.S.2003. The defendant must offer proof of the sudden and unforeseen emergence of a situation requiring his or her immediate action to prevent an imminent injury. People v. Roberts, 983 P.2d 11 (Colo.App.1998).

An affirmative defense such as choice of evils provides a legal justification for otherwise criminally culpable behavior. People v. Martinez, 36 P.3d 154 (Colo.App.2001). A defendant who asserts an affirmative defense admits the doing of a charged act, but seeks to justify the act on grounds deemed by law to be sufficient to avoid criminal responsibility. People v. Huckleberry, 768 P.2d 1235 (Colo.1989).

A defendant who has a reasonable legal alternative as a means to avoid the threatened injury is foreclosed from asserting a choice of evils defense. Moreover, a defendant who seeks to assert a choice of evils defense must offer evidence that the criminal conduct at issue did not exceed that reasonably necessary to avoid the impending injury. People v. Brandyberry, 812 P.2d 674 (Colo.App.1990).

Before instructing the jury on the choice of evils defense, the trial court must look at the evidence in the light most favorable to the defendant and determine whether the facts could justify the crimes charged. People v. Auman, 67 P.3d 741 (Colo.App.2002)(ceri. granted Mar. 24, 2003). On appeal, we must determine as a matter of law whether defendant’s offer of proof, considered in the light most favorable to him, is substantial and sufficient to support the statutory defense. See People v. Brandyberry, supra.

As part of his offer of proof, defendant indicated that his three children, who ranged in age from sixteen months to eleven years, suffered from serious health problems. On the date the crimes occurred, the children had not eaten for more than twenty-four hours, and three different food banks had turned down defendant’s requests for food. Defendant feared that a lack of food would exacerbate his children’s health problems and lead to malnutrition and death.

The trial court refused to give a choice of evils instruction, finding that defendant failed to establish an imminent threat of injury to his children and that he did not show that he could not have pursued other legal alternatives for obtaining food. We perceive no error.

While we are not without sympathy for the downtrodden, the law is clear that economic necessity alone cannot support a choice of crime. Although economic necessity may be an important issue in sentencing, People v. Turner, 249 Ill.App.3d 474, 189 Ill.Dec. 80, 619 N.E.2d 781 (1993), a choice of evils defense cannot be based upon economic necessity. See State v. Moe, 174 Wash. 303, 24 P.2d 638 (1933)(unemployed workers who marched on a commissary and stole groceries could not raise the defense of economic necessity); see also People v. McKnight, 626 P.2d 678 (Colo.1981)(to rely on the choice of evils defense, defendant must show that he or she had no reasonable alternative except to commit the crime charged).

Further, Colorado law requires that the defendant show a direct causal connection between the action taken and the harm sought to be prevented. Andrews v. People, 800 P.2d 607 (Colo.1990). Here, the trial court properly ruled by implication that the causal link was absent. This ruling finds support in the record from the circumstances of forgery and the relatively large amount of the forged instrument.

We conclude that defendant’s offer of proof did not entitle him to assert a choice of evils defense, and the trial court did not err by refusing to give a choice of evils instruction to the jury and by refusing to allow defendant to use the theory as a general defense.

In reaching this conclusion, we decline to consider defendant’s argument, made for the first time on appeal, that the evidence described in the offer of proof was admissible as part of the res gestae of the crimes. See, e.g., People v. Lucero, 985 P.2d 87 (Colo.App.1999)(argument not considered on appeal where not first raised in the trial court).

II.

Defendant contends that the trial court erred in denying his motion for a new trial. Again, we disagree.

A trial court’s decision to deny a motion for a new trial is discretionary and will be upheld if not manifestly arbitrary, unreasonable, or unfair. People v. Eckert, 919 P.2d 962 (Colo.App.1996). Before a new trial will be granted, the record must affirmatively show prejudice to the defendant’s substantial rights. People v. Woodward, 631 P.2d 1188 (Colo.App.1981).

Defendant sought a new trial on the ground that the trial court erred by allowing his wife to testify as a prosecution witness in violation of the marital privilege statute. The trial court denied the motion, concluding, among other things, that the testimony did not prejudice defendant and the evidence against him was overwhelming.

The trial court did not abuse its discretion in denying defendant’s motion. Assuming, without deciding, that the marital privilege applied to the testimony at issue and was properly invoked, we conclude that any error was harmless. The trial court instructed the jury to disregard the wife’s testimony, and there being no indication to the contrary, we assume that the jury followed the court’s curative instruction. See People v. McNeely, 68 P.3d 540 (Colo.App.2002).

In addition, there was overwhelming evidence of defendant’s guilt. Defendant was arrested at the scene of his crimes. A surveillance camera in the store where the crimes occurred recorded the entire incident. At the direction of the store clerk, defendant endorsed the check and put his fingerprint on the instrument. Defendant committed his crimes on May 12, 2001; the store clerk was alerted to the suspicious activity because the identification card defendant presented listed his birth date as September 24, 2001; and he called the police while the crime was in progress. Finally, the assistant controller for the company whose name was on the payroll check testified that the company had not issued the check and had never employed anyone with either defendant’s name or the false name used by defendant at the store.

In light of this evidence, the testimony of defendant’s wife could not have substantially influenced the verdict or impaired the fairness of the trial. Thus, any error was harmless. See People v. Pahlavan, 83 P.3d 1138, 2003 WL 1923030 (Colo.App. No. 01CA1331, Apr. 24, 2003).

The judgment is affirmed.

Judge MARQUEZ and Judge ROTHENBERG concur.