author: COATS, Chief Judge.

text:
    William R. HAMMOCK, Appellant, v. STATE of Alaska, Appellee.
    No. A-7800.
    Court of Appeals of Alaska.
    July 12, 2002.

      David Graham, Graham Law Firm, Sitka, for Appellant.
    Kurt C. Twitty, Assistant District Attorney, Sitka, Richard Svobodny, District Attorney, Juneau, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

COATS, Chief Judge.

A jury convicted William R. Hammock of second-degree eriminal trespass for remain-. ing on the premises of the Rookies Sports Bar & Grill in Sitka after he was repeatedly asked to leave. Hammock argues that a new trial is necessary because he was prejudiced by the trial court's refusal to excuse two jurors he challenged for cause. He also claims that the court should have granted his motion for judgment of acquittal because the criminal trespass statute does not prohibit his conduct: leaving the Rookies premises each time he was asked to leave, then returning later. Lastly, Hammock argues that the court erred by not instructing the jury that it must find his conduct "unlawful."

After reviewing the record, we conclude that the court abused its discretion by not excusing one prospective juror for cause. However, because Hammock used a peremptory challenge to excuse that prospective juror, he did not serve on the jury and Hammock was not prejudiced. We reject Hammock's other claims and affirm the verdict.

Facts and proceedings

The evening of March 11, 2000, Brent Denkinger, the owner of the Rookies bar in Sitka, told Hammock to leave the bar because Hammock was with an underage person and was involved in a conflict with other bar patrons. Hammock left the bar but remained outside in the parking lot. Denkinger then called the police, but Hammock had left by the time the police arrived. Peter Menendez, the bartender, testified that Hammock was told to leave "[alt least for the night."

About thirty minutes later, Hammock showed up outside the bar and Denkinger called the police again. Before the police arrived, Hammock became involved in a fight in the parking lot with the same bar patrons. This time Sitka Police Officer David E. Johnson told Hammock at Denkinger's request that "he was no longer welcome ... in Rookies or ... on their property" and that he would be arrested for criminal trespass if he returned.

Thirty to forty-five minutes later, Hammock came back to the Rookies bar a third time and was told to leave by Menendez and the manager working the front door. Hammock left the bar but "went outside and stood around." The police were called again. When Officer Johnson arrived, Hammock was "at the front door trying to get into the establishment." Officer Johnson arrested Hammock without telling him to leave the premises.

Hammock was charged with second-degree criminal trespass. Before trial, Hammock challenged two prospective jurors for cause, arguing that they were predisposed to find him guilty if he chose not to take the stand and testify at trial. The district court denied both challenges after the prospective jurors stated that they could set aside their predispositions and follow the law. Hammock then used his three peremptory challenges, removing one of the jurors that he had challenged for cause. The jury convicted Hammock of second-degree criminal trespass.

Hammock appeals.

Discussion

The challenges for cause

Hammock argues that the court abused its discretion by not exeusing the prospective jurors he challenged for cause. Hammock challenged two jurors because they were equivocal during voir dire about their ability to follow the court's instructions to draw no inference of guilt if Hammock did not testify at trial.

Alaska Criminal Rule 24(c) provides that a prospective juror should not serve on the jury if the person "shows a state of mind which will prevent the person from rendering a just verdict" or "has opinions ... which would improperly influence the person's verdict." The trial court has discretion to grant or deny a challenge for cause and this court will interfere with that discretion "only in exceptional cireumstances and to

prevent a miscarriage of justice." To support the court's decision to deny a challenge for cause, the record need not reflect " equivocal and absolute" impartiality on the part of a juror because the truly honest juror likely could not claim "unequivocally and absolutely that his or her biases will have no effect on the verdict." As the supreme court explained in Strotiak v. H.C. Price Company, "[alll that is required of a prospective juror is a good faith statement that he or she will be fair, impartial and follow instructions."

Hammock first challenged Alan Blankenship, a state maintenance employee in Sitka, after Blankenship gave conflicting and ambiguous responses about his ability to draw no inference of guilt if Hammock chose not to testify at trial. At various points during voir dire, Blankenship indicated he would have difficulty not drawing an inference of guilt if Hammock decided not to testify, stating "I would probably in the back of my mind be thinking he's guilty" and "I don't think I'd be able to put [the inference of guilt] out of my mind." At other points, Blankenship testified that he would be able to set aside the inference of guilt if instructed to do so by the court. But each of these statements was followed by a qualifying remark suggesting that Blankenship might disregard the court's instructions. For example, Blankenship said "I can set it aside but it's still gonna be there. I mean, nobody's gonna know what-why I decide what I decide." Later, when Hammock's attorney asked Blankenship again if he could follow the law, Blankenship said: "I believe so. Nobody's going to find out either way, right?" Blankenship gave similar responses when questioned by District Court Judge Larry C. Zervos, stating first that "I believe I can [follow the law]" but then adding that "what I say and what I do are gonna be probably-could be two different things." Finally, Blankenship made one unequivocal statement-"I will apply the law as instructed"-and Judge Zervos denied Hammock's challenge for cause.

Although the court eventually did elicit a statement from Blankenship that he could follow the law, the voir dire considered as a whole undermines any conclusion that this statement was made in good faith. Blankenship repeatedly indicated he might disregard the court's instructions because no one would find out he had done so; he also suggested he might ignore his oath to follow the law because "it's only illegal when you get caught." Civen these responses, Judge Zervos's continued questioning "seemed tailored to rehabilitate [him] as a qualified juror rather than to ascertain [his] willingness to perform [his] duty as a juror in a fair and impartial manner." We conclude that the court abused its discretion by denying Ham-moek's challenge of Blankenship for cause.

Hammock challenged a second juror, Shelby Albrecht, for the same reason. Al-brecht stated during voir dire by Hammock's attorney that she did not know if she could draw no inference of guilt from Hammock's decision not to testify. Later, she said she "definitely" would draw such an inference, even if the judge instructed her otherwise. Finally, she reversed course, stating equally unequivocally that she could follow the law. The trial judge observed Albrecht's demean- or and was entitled to take her indecision and eventual change of heart at face value. Al though additional voir dire might have helped ascertain why Albrecht had changed her mind, the court reasonably could have concluded that Albrecht believed in good faith that she could set aside her predispositions and decide the case in an impartial manner. No more is required. We conclude that the court did not abuse its disceretion by denying Hammock's challenge of Al-brecht for cause.

Hammock argues that he was prejudiced by Judge Zervos's refusal to grant his challenges for cause because he exhausted his peremptory challenges. Hammock used one peremptory challenge to excuse Blankenship and his remaining two peremptory challenges to dismiss prospective jurors whom he had not challenged for cause. Hammock did not ask the court to grant any extra peremptory challenges. Hammock argues that if the court had granted his challenge for cause against Blankenship he would have used his last peremptory to remove Albrecht. Hammock ultimately did not testify, and he contends that Albrecht's presence on the jury was prejudicial because the case was close and Albrecht was predisposed to infer guilt from his failure to take the stand.

Even assuming Hammock would have exercised a peremptory challenge to excuse Albrecht from the jury, this fact alone does not establish prejudice. To show prejudice, Hammock must "demonstrate some reason to believe that one or more of the jurors who decided his case were, in fact, not fair." " As discussed above, the court did not abuse its discretion in deciding that Albrecht could be an impartial juror. Therefore, we reject Hammock's claim that he was prejudiced by her presence on the jury.

The motion for judgment of acquittal

Hammock next argues that the district court should have granted a motion for judgment of acquittal because the second-degree criminal trespass statute on its face does not prohibit the conduct he engaged in-leaving premises that are open to the public (the Rookies bar) each time he was asked to leave, and then returning later. Underlying this claim is Hammock's contention that the court should have instructed the jury that it was legal to return to a public place after being told to leave.

Under AS 11.46.3830, a person commits see-ond-degree criminal trespass if the person "enters or remains unlawfully ... in or upon premises." " To "enter or remain unlawfully" is defined, inter alia, as "fail{ing] to leave premises ... that [are] open to the public after being lawfully directed to do so personally by the person in charge."

In reviewing a trial court's decision on a motion for judgment of acquittal, we view the evidence in the light most favorable to the prevailing party. We reverse a decision to deny such a motion only if "fair-minded persons would have to agree that the state had failed to carry its burden of proof beyond a reasonable doubt." " The interpretation of a statute is a question of law we review de n0v0."

Hammock's argument that he is entitled to a judgment of acquittal hinges on his view of the facts and his interpretation of the trespass statute. Hammock asserts that the evidence in his case shows that he left the Rookies Bar every time he was ordered to, although he quickly returned each time. Hammock then argues that this conduct does not constitute trespass. He points out that, as defined in AS 11.46.850(a)(2), a person "remain[s] unlawfully" on another's property if the person "fail[s] to leave [the] premises . after being lawfully directed to do so." Hammock asserts that, under this definition, a person who is asked to leave another's property commits no trespass so long as the person promptly leaves the boundaries of the property before returning.

But viewing the evidence in the light most favorable to the State (as we must), a reasonable jury could conclude that Hammock did not depart from the Rookies property on the third (ie., the final) occasion when he was ordered to leave. Rather, Denkinger testified that Hammock left the building but then "went outside and stood around." When the police arrived a little later, Hammock was "at the front door trying to get into the establishment." Viewing this evidence (and the inferences that might reasonably be drawn from it) in the light most favorable to the State, Hammock never left the property on this final occasion-thus committing trespass even under his own interpretation of the statute.

Moreover, we reject Hammock's interpretation of the trespass statute. The underlying issue is whether a person who is asked to depart from property truly "leaves" within the meaning of the statute if the person departs for only a few minutes and then returns.

In Turney v. State, this court limited the application of Alaska's trespass statute with regard to public buildings (for example, a courthouse). We held that the supervisors of public buildings could lawfully direct a person to leave the premises for a time, but-in the absence of a special statute giving them this power-they could not bar a person from ever returning to the property." Yet despite this limitation on the government's power to permanently bar citizens from its buildings, we noted that people could properly be convicted of trespass at a government building if they either ignored a "reasonably contemporaneous" request to leave or if they "heedled] the directive to leave but then return{ed] to the public facility after only a short while." *

Under the interpretation of the trespass statute adopted in Turney, Hammock's conduct-leaving, then returning within minutes-would have constituted trespass even if the property involved had been a government building open to the public. But the property involved in this case was a privately owned bar and restaurant. The owners of private commercial property have at least as much authority to remove unruly patrons as the supervisors of government buildings. Indeed, we noted in Turney that under New York law (one of the primary sources of Alaska's trespass and burglary statutes),

[olJwners of private property (even private property open to the public for commercial purposes) may order a person to leave and never come back. If the person returns, he or she can be convicted of trespass for the mere act of returning."

Thus, even under Hammock's view of the evidence-ie., even assuming that he physically departed from the premises for brief periods of time before returning-a reasonable jury could conclude that Hammock was guilty of trespass for ignoring a reasonably contemporaneous request to leave.

The jury instructions

Hammock next argues that the district court erred by not instructing the jury that it must find that his conduct was "unlawful" and that he disobeyed a "lawful" order to leave the Rookies premises. Hammock argues that a finding of unlawfulness is an essential element of the offense, and that the court's error prejudiced him because it relieved the state of its burden to establish every element.

Jury Instruction No. 15 provided that: "To 'enter or remain unlawfully' means to fail to leave premises that [are] open to the public after being lawfully directed to do so personally by the person in charge."" In closing argument, Hammock's counsel specifically asked the jury to look to Instruction No. 15 to determine if Hammock "knowingly entered or remained on the premises"-that is, to determine if he was guilty of second-degree criminal trespass. Thus, Hammock's claim that the court failed to instruct the jury that it must find Hammock's conduct unlawful is without merit.

Hammock also argues in his reply brief that he was prejudiced by the court's failure to instruct the jury that it must find that he disobeyed a lawful order to leave because the order that he leave the Rookies premises was based on his Native heritage. But as noted above, the jury was instructed that it must find that Hammock ignored a lawful order to leave. Furthermore, Hammock waived these specific claims of prejudice because he did not raise them below or in his opening brief.

Because the jury was instructed that it must find Hammock's conduct unlawful, Hammock cannot claim that he suffered prejudice. We thus reject Hammock's claim.

Conclusion

The judgment of the district court is AFFIRMED.

      . AS 11.46.330(a)(1).

      . See Strotiak v. H.C. Price Co., 758 P.2d 1271, 1275 (Alaska 1988) (quoting Mitchell v. Knight, 394 P.2d 892, 897 (Alaska 1964).

      . See id. at 1277.

      . 758 P.2d 1271.

      . Id. at 1277.

      . See Beck v. Dep't of Transp. and Pub. Facilities, 837 P.2d 105, 112 n. 4 (Alaska 1992).

      . See Young v. State, 848 P.2d 267, 270 (Alaska App.1993).

      . See Sirotiak, 758 P.2d at 1277 (finding no abuse of discretion where court denied challenge for cause against prospective juror who first indicated that proof by a preponderance of the evidence . would not satisfy him, but then stated that he would be able to understand the judge's instructions and follow them).

      . See id.

      . See Minch v. State, 934 P.2d 764, 770 (Alaska App.1997).

      . The parties do not dispute that the Rookies bar was "open to the public." Cf. Arabie v. State, 699 P.2d 890, 893 (Alaska App.1985) (treating grocery and liquor store as building that was open to the public for purposes of AS 11.46.350(a)).

      . AS 11.46.330 provides:
      Criminal trespass in the second degree. (a) A person commits the crime of criminal trespass in the second degree if the person enters or remains unlawfully
      (1) in or upon premises; or
      (2) in a propelled vehicle.
      (b) Criminal trespass in the second degree is a class B misdemeanor.

      . See AS 11.46.350, which provides:
      Definition. (a) As used in AS 11.46.300-11.46.350, unless the context requires otherwise, "enter or remain unlawfully" means to
      (1) enter or remain in or upon premises or in a propelled vehicle when the premises or propelled vehicle, at the time of the entry or remaining, is not open to the public and when the defendant is not otherwise privileged to do so;
      (2) fail to leave premises or a propelled vehicle that is open to the public after being lawfully directed to do so personally by the person in charge; or
      (3) enter or remain upon premises or in a propelled vehicle in violation of a provision in {a protective] order issued or filed under AS 18.66.100-18.66.180 or issued under former AS 25.35.010(b) or 25.35.020.

      . See Snyder v. State, 661 P.2d 638, 641 (Alaska App.1983).

      . See id. (emphasis in original).

      . See Sosa v. State, 4 P.3d 951, 953 (Alaska 2000).

      . 922 P.2d 283 (Alaska App.1996).

      . Id. at 288.

      . Id.

      . Id. at 287.

      . Emphasis added.

      . New York courts have defined "lawful" in this context as mandating proof thai the "particular order or exclusion had a legitimate basis" and was not "premised on the exclusion of a person from a place of public accommodation on the basis of race, creed, color, national origin, sex, disability, or marital status." See William C. Donnino, Practice Commentary, N.Y. Penal Law § 140.00(5), 11 (McKinney 1999).

      . See Petersen v. Mutual Life Ins. Co., 803 P.2d 406, 411 (Alaska 1990); Mossberg v. State, 624 P.2d 796, 804-05 (Alaska 1981).


source: Caselaw Access Project

author: COATS, Chief Judge. MANNHEIMER, Judge,

license: Public Domain

text:
    Sean R. BEATTY, Appellant, v. STATE of Alaska, Appellee.
    No. A-7986.
    Court of Appeals of Alaska.
    Aug. 9, 2002.

      John M. Murtagh, Anchorage, for Appellant.
    John A. Seukanee, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

COATS, Chief Judge.

A jury convicted Sean R. Beatty of conspiracy to commit robbery in the first degree and robbery in the first degree Beatty appeals, arguing Superior Court Judge Larry D. Card erred in rejecting the defense's proposed jury instructions on the lesser-included offense of attempted robbery in the first degree. We conclude that Judge Card did not err in refusing to give the instruction because Beatty failed to present sufficient evidence to require the court to give such an instruction.

Facts and proceedings

In December 1999, a grand jury indicted Beatty for conspiracy to commit robbery in the first degree and robbery in the first degree. The state's theory at trial was that late in the evening of September 15, 1999, seven friends conspired to rob Matthew Fox, a local drug dealer. The conspirators were Sean R. Beatty, Adam A. Alires, Elijah M. Lindsey, Torey J. Tuttle, Shawn Roe, Jerry C. Lee, and Justin W. Dufour. Beatty put the conspiracy into action by arranging a meeting with Fox under the guise that Beatty was going to pay off an outstanding debt. Fox agreed to meet Beatty at a local carwash in Anchorage at 3:00 the. following morning (September 16, 1999).

According to the state, the plan was that Beatty and Tuttle would meet Fox while the others hid in the woods out of sight. At a pre-arranged signal, the others would rush out of the woods and surround Fox. Once surrounded, Beatty or Tuttle would order Fox to turn over any money he had. The rumor on the street was that Fox would be carrying a large amount of money on him.

Fox showed up at the carwash with a friend, Daniel Singer. While Beatty and Fox were discussing the debt, Beatty looked at and unloaded Fox's pistol. The meeting between Beatty and Fox became heated and someone sounded a car horn (presumably the signal to initiate the robbery). As several individuals ran out of the woods, Fox and Singer jumped into their car and sped away. As they fled, someone shot at and hit Fox's vehicle, blowing out two of his tires. Police found another bullet in a vacuum island in the carwash parking lot.

Several blocks away, Anchorage Police Officers Gerrard Asselin and Gary Martin heard multiple gunshots. As they raced towards the area, they spotted two young adults running down the street. They stopped the individuals, later identified as Lindsey and Alirezs, and questioned them about the shooting. Both Lindsey and Alirez denied any knowledge of the shooting but gave inconsistent stories of their whereabouts to the police. After questioning Lindsey and Alirez, Officers Asselin and Martin released them.

Anchorage Police Officer Doyle Warren also responded to the area and saw four young men parked at the carwash in a white Suburban. He contacted the individuals and identified them as Beatty, Tuttle, Roe, and Dufour. Officer Warren searched the vehicle, found nothing suspicious or incriminating, and released them.

Prior to Beatty's trial, Fox was arrested on an unrelated charge. Detective John Van-dervalk interviewed Fox and convinced him to call Beatty and discuss the incident while Det. Vandervalk surreptitiously recorded the conversation pursuant a (@Glaoss warrant. During the call, Beatty initially denied his involvement but ultimately made several incriminating statements including admitting knowledge of the planned robbery and agreeing to pay for the two tires that had been shot out during the robbery.

At trial, the state introduced the Glass recording of Fox's and Beatty's conversation and several interviews that Det. Vandervalk had with Beatty. Alirez, the only participant to testify at trial, testified that he had no knowledge of a conspiracy to rob Fox and only hid in the woods with the others "in case a fight broke out." He stated that when Fox showed up "nothing happened." According to Alirez, only after he left did he hear gunshots coming from the carwash.

In response, the state introduced Alirez's earlier interview with Det. Vandervalk as a prior inconsistent statement. In that interview, Alirez described how the planned robbery evolved and implicated Beatty. He stated Beatty was the one who called Fox and convinced him to come to the carwash and that the signal to initiate the robbery was a honk from the car horn. He stated that he never saw what happened during the actual robbery and told Det. Vandervalk that he left the carwash before the robbery began.

Beatty requested Judge Card instruct the jury on the lesser-included offense of attempted robbery in the first degree. Beatty's theory was that the jury could find Beatty and his co-conspirators had planned to rob Fox and had taken a substantial step to accomplish the robbery but Beatty and his co-conspirators never completed the robbery because they did not confront Fox and demand property. The state argued that the robbery statute had been broadened by the legislature to include attempts and therefore the offense of attempted robbery does not exists under the Alaska criminal code. Judge Card accepted this argument and denied Beatty's proposed attempted robbery instruction.

The jury convicted Beatty of conspiracy to commit robbery in the first degree and robbery in the first degree. Judge Card sentenced Beatty to four years with two suspended for conspiracy to commit robbery and seven years with two years suspended for the robbery, to run concurrent with the conspiracy sentence.

Under the Alaska criminal code, attempted robbery in the first degree is an offense

Alaska Statute 11.41.510(a) defines second-degree robbery:
A person commits the erime of robbery in the second degree if, in the course of taking or attempting to take property from the immediate presence and control of another, the person uses or threatens the immediate use of foree upon any person with the intent to
(1) prevent or overcome resistance to the taking of the property or the retention of property after taking; or (2) compel any person to deliver the property or engage in other conduct which might aid in the taking of the property.

Second-degree robbery is elevated to first-degree robbery if, during the robbery, the person is (1) armed or represents that he is armed with a deadly weapon, (2) uses or attempts to use a dangerous instrument, or (3) causes or attempts to cause serious physical injury to another.

Thus, for the jury to convict Beatty of first-degree robbery, the jury was required to find:

(1) that Beatty or an accomplice took or attempted to take property from the immediate presence and control of Fox;
(2) that Beatty or an accomplice used or threatened immediate use of force upon Fox;
(3) with the intent to prevent or overcome resistance from Fox or compel Fox to deliver the property; and
(4) that Beatty or an accomplice was armed with a deadly weapon or represented by words that they were armed with a deadly weapon.

The Alaska eriminal code went into effect in 1980. Before the revised criminal code, "attempt" was not included within the definition of robbery. Instead, robbery required the defendant to steal or take property. If a defendant failed to complete the theft during the robbery, he was guilty of assault with the intent to commit robbery or attempted robbery.

Under the revised code, robbery, assault with the intent to commit robbery, and some attempted robberies were all incorporated into one general inclusive robbery statute. The commentary to the Alaska Revised Criminal Code indicates that the additional language "attempting to take" was intended to criminalize both a successful and unsue-cessful robbery. The legislative purpose behind the revised statute was to emphasize the physical danger associated with robbery, not the theft of property:

The revised Code does not require, for either degree of robbery, that property actually be taken from the victim. Under existing law, robbery is only committed if the robber "steals or takes anything of value", AS 1[1].15.240. If the would-be robber fails to acquire any property, he is guilty of Assault with Intent to Commit Robbery, AS 11.15.160, or simply Attempted Robbery. This approach emphasizes the property aspects of the crime and treats it as an aggravated form of theft. If, however, the primary concern is with the physical danger to the victim and his difficulty in protecting himself from sudden attacks against his person, then the actual taking of property becomes less important. The Revised Code emphasizes the person, rather than the property, aspects of the offense.

But the commentary does not suggest that the additional language was to eliminate all attempted robberies. The legislative intent behind the revised robbery statute was to criminalize unsuccessful takings of property to the same extent as successful takings. The legislature was not trying to criminalize anticipatory acts in preparation of a robbery under the general robbery statute. This interpretation is consistent with AS 11.41.510's language. The current statute reads:

[I]n the course of taking or attempting to take property from the immediate presence and control of another, the person uses or threatens the immediate use of forcel.]

The phrase "immediate presence and control" seems to relate to property, as only property can be within a person's "presence and control." The phrase "uses or threatens to the immediate use of force," on the other hand, seems to be independent of "taking or attempting to take." If "attempting to take" only relates to property, and not to the use of or the threatened use of force, then it appears that a person could still face criminal liability under the general attempt statute for the acts that led up to the robbery before he used or threatened the immediate use of force to try to obtain property from a other's immediate presence and control.

Accordingly, the general concept of attempt as defined in AS 11.31.100(a) must govern. That is, a person is guilty of attempt if, with the intent to commit a crime, the person takes a "substantial step toward the commission of that crime." The attempt statute is intended to encompass a wide-range of acts beyond mere preparation. Examples include: lying in wait, searching for or following the potential victim, enticing the victim to go a contemplated place, possessing materials for the commission of the offense, or any overt act done towards its commission.

The difference between attempted robbery and robbery is not whether the theft was successful but whether the defendant used or threatened to use force against the victim with the intent to obtain property from the victim's immediate presence and control. The statute clearly criminalizes unsuccessful robberies caused by victim resistance or lack of property. For example, a defendant who initiates a robbery is still guilty of robbery if the victim flees before the robber gains control of the property or if the victim has an "empty pocket." However, a defendant is not guilty of robbery if the victim never shows up at a pre-arranged meeting place where the defendant had planned to rob him. A completed robbery requires the use of force or threat of force in an attempt to take property from the immediate presence of the victim. Onee a defendant uses or threatens to use force to implement the attempted taking, it is irrelevant whether the taking is successful; the offense is a completed robbery. But if the intended robbery is interrupted before the defendant's use of force or threat of force, the crime is attempted robbery.

The Model Penal Code supports this view. Both the Model Penal Code and the Alaska Criminal Code require the defendant to use or threaten to use force during the robbery. According to the Model Penal Code commentary, the term "threaten" implies a purposeful conduct that must be conveyed to the victim either explicitly or implicitly. It is the defendant's purposeful behavior that controls whether the threat has been communicated, not the victim's reaction. Both the Model Penal Code and AS 11.41.510 focus on the defendant's intent during the robbery and not the victim's state of mind. Focusing on the defendant's purposeful behavior, as opposed to the victim's reaction, prevents a victim's overreaction elevating an offense from theft to robbery.

For this reason, the Model Penal Code commentary notes that under certain cireum-stances (e.g., where the actor does not actually threaten harm or use force), the appropriate charge will be attempted robbery, not robbery:

If, for example, the defendant is apprehended before he reaches his robbery vie-tim and thus before he has actually engaged in threatening conduct, proof of his purpose to engage in such conduct will justify a conviction of attempted robbery if the standards of [the general attempt provision] are met. [The general attempt provision] was drafted in large part with the offense of robbery in mind, applying as it does to one who is "lying in wait, searching for or following the contemplated victim of the crime."

Therefore, under Alaska's revised criminal code, a person is guilty of attempted robbery if, with the intent to commit the robbery, the person takes a substantial step toward its commission. The crime becomes a completed robbery when "in the course of taking or attempting to take property from the immediate presence and control of another, the person uses or threatens the immediate use of foree upon any person" with the intent to obtain or retain the property. It is the robber's use or threat of force that distinguishes the completed robbery from the attempt. Onee force is used or threatened, a completed robbery has occurred.

There was insufficient evidence to require Judge Card to instruct the jury on attempted robbery in the first degree

Attempted robbery in the first degree is a lesser-included offense of robbery in the first degree. Therefore, if Beatty could point to some evidence to support the reasonable conclusion that he and his co-conspirators (1) intended to rob Fox but (2) never actually used force or threatened the use of force, then Judge Card was required to instruct on the lesser-included offense.

The only eyewitness to testify at trial was Adam Alires. At trial, Alives testified that he and the others only hid in the bushes "in case a fight broke out." He denied any plan to rob Fox. According to Alirez, when Fox showed up "nothing happened." It was only after he left that Alirez heard gun shots. The state impeached Alirez with his prior statement to Det. Vandervalk. In this prior statement, Aliresz outlined how the co-conspirators had planned the robbery. He stated that Beatty called Fox and convinced Fox to come to the carwash. He described how he hid in the woods and how he and the others intended to run out of the bushes and order Fox to turn over his money. He also described the gun that Tuttle had taken to the carwash to threaten Fox. In both his trial testimony and his prior statement, Alirez stated he left the carwash before the planned robbery began.

To demonstrate what happened at the car-wash onee Fox arrived, the state relied on the Glass recording of Beatty's conversation with Fox, Det. Vandervalk's interviews with Beatty, and the testimony of Officer Asselin, Officer Martin, and Alirez that they heard gunshots coming from the area of the car-wash at approximately the time the planned robbery was to occur. The state also introduced an expended bullet that Officer Martin found in a vacuum at the carwash following the robbery. Beatty did not testify at trial.

In the statements to Det. Vandervalk, Beatty stated that he was in the car at the carwash with Fox and unloaded Fox's gun. He stated that after someone sounded the horn, four or five men came running out of the woods, trying to "jump [Fox] and beat [Fox] up." He stated that "Fox jump{ed] in his car and people start{ed] shootin[g] at ... shootin[g] at his car." Beatty's major defenses at trial were that he had no prior knowledge of the conspiracy to rob Fox and no evidence indicated what actually happened onee Fox arrived at the carwash.

On appeal, Beatty contends that the state's evidence did not clearly establish what happened at the carwash. Beatty points out that the record suggests that Fox was unaware that the purpose of any assault on him was a robbery. He argues that, under the evidence the state presented at trial, it is possible that Fox, a person who was armed and had a reputation as a drug dealer, initiated the confrontation before the co-conspirators were able to initiate the robbery. He also argues that, under the evidence the state presented at trial, it is possible that the co-conspirators did not confront Fox sufficiently for the jury to find that the co-conspirators attempted to take property from his immediate presence and control or that they managed to use or threatened to use immediate force upon him. He argues that under either of these versions of the facts, the jury could have concluded that the state did not establish that he committed robbery in the first degree but, instead, that he only committed an attempted robbery in the first degree.

But Beatty's argument relies totally on speculation. We know from the jury's verdict on the conspiracy charge that the jury found Beatty conspired with the others to rob Fox. The evidence clearly established that shots were fired while Fox was at the carwash and that Fox fled. Beatty's own statement supports the conclusion that the co-conspirators came out of the woods trying to jump Fox and beat him up and that after Fox got into his car, people started shooting at his car. There is simply no basis to conclude that Fox initiated the confrontation before the co-conspirators could initiate the plan to rob him or that the robbers did not sufficiently confront or threaten Fox to support a conclusion that a completed robbery did not occur. We conclude that Judge Card did not err in refusing to instruct the jury on the lesser-included offense of attempted robbery in the first degree because the record does not establish that some evidence supported a finding that this offense occurred.

The conviction is AFFIRMED.

MANNHEIMER, Judge,

concurring.

I am writing separately to emphasize the salient points of our decision. This appeal presents two questions: (1) Is there such a crime as "attempted robbery" under Alaska's current criminal code? And, if so, (2) Did the evidence at Beatty's trial justify an instruction on this crime?

There is a crime of attempted robbery under Alaska law

Under AS 11.41.510(a), the offense of robbery includes not only forcible takings of property but also the use of foree or threat of foree in "attempting to take property from the immediate presence and control of another". If an attempt to take property constitutes the completed crime of robbery, is there any lesser conduct that might properly be called "attempted robbery"?

The answer is yes. As the majority opinion explains, the crime of robbery becomes complete when the defendant (acting with one of the culpable mental states specified in the statute) uses force or threatens the use of force in an attempt to take property from the immediate presence or control of another. But if the attempt to take the property never reaches this stage-i.e., if the attempt is frustrated or interrupted before the defendant (or one of the defendant's accomplices) begins to use force or threatens to use foree-then the defendant's conduct may constitute an attempted robbery. This is because, under AS 11.31.100(a), an attempt may be proved based on various preparatory acts that can occur before the would-be robber ever begins or threatens the use of force. According to the commentary written by the drafters of our Criminal Code, an attempt can consist of acts such as lying in wait for the victim, searching for or following the intended victim, enticing the victim to come to the place contemplated for the offense, gathering unlawful materials to be used in the commission of the offense, or any other overt act done toward the commission of the contemplated offense.

Did the evidence at Beatty's trial justify a jury instruction on the lesser offense of attempted robbery?

Because Beatty was charged with robbery, attempted robbery was a potential lesser included offense in his case. But a defendant is not entitled to a jury instruction on a potential lesser included offense unless (1) the defendant necessarily committed the lesser offense if he or she committed the charged offense in the manner alleged by the State; (2) the defendant actually disputes the element or elements distinguishing the charged offense from the lesser; and (8) the evidence would support a reasonable conclusion that the defendant is guilty of only the lesser offense and not the charged offense.

Beatty's appeal falters on this third requirement. The evidence at Beatty's trial shows that Beatty and his accomplices conspired to rob Fox, lured Fox to the place contemplated for the robbery, and then fired shots at Fox as he fled to avoid being robbed. Even if Fox became suspicious and began to flee before Beatty and his cohorts could threaten Fox or otherwise communicate their intention to rob him, this active use of force to prevent Fox's flight made the crime of robbery complete.

Beatty does not dispute that shots were fired at Fox, but he suggests that his crime might still be attempted robbery if those shots were fired in self-defense. Beatty suggests the following scenario: he and his accomplices conspired to rob Fox, and they lured Fox to a location where the robbery would take place; but before they ever threatened Fox or communicated their intention to rob him in any other manner, Fox commenced an unprovoked assault on them-and thus Beatty and his accomplices shot at Fox in self-defense rather than in furtherance of the planned robbery.

There is no evidence to support these assertions. Beatty's scenario rests entirely on speculation. Thus, he was not entitled to a jury instruction on attempted robbery.

      . AS 11.31.120(a)(1); AS 11.41.500(a)(1).

      . AS 11.41.500(a)(1).

      . AS 11.41.500(a).

      . See former AS 11.15.240 (repealed 1978).

      . See former AS 11.15.240 (repealed 1978).

      . See former AS 11.15.160 (repealed 1978); see, e.g., Brookins v. State, 600 P.2d 12, 14-15 (Alaska 1979).

      . See Alaska Criminal Code Revision Part II, at 81 (Tent. Draft 1977).

      . Id.

      . AS 11.41.510.

      . AS 11.31.100(a).

      . Alaska Criminal Code Revision Part II, at 73 (Tent. Draft 1977) (citing Model Penal Code (MPC) § 5.01(2)).

      . MPC Part II, § 222.1 cmt. at 99-100 (1980).

      . Id. at 114-15.

      . See MPC Part II, § 222.1 at 96 (1980); AS 11.41.510(a).

      . MPC Part II, § 222.1 cmt. at 114-15.

      . See id.

      . See id.

      . Id. at 115.

      . See Alaska R.Crim. P. 31(c).

      . See Hartley v. State, 653 P.2d 1052, 1054 (Alaska App.1982).

      . See Alaska Criminal Code Revision, Tentative Draft, Part 2 (1977), p. 73.

      . See State v. Minano, 710 P.2d 1013, 1016 (Alaska 1985); Elisousky v. State, 592 P.2d 1221, 1225 (Alaska 1979); Petersen v. State, 930 P.2d 414, 433 (Alaska App.1996); Blackhurst v. State, 721 P.2d 645, 648 (Alaska App.1986).


author: Justice COATS

text:
    ALLSTATE INSURANCE COMPANY, Petitioner, v. Gloria HUIZAR, Respondent.
    No. 01SC9.
    Supreme Court of Colorado, En Banc.
    June 10, 2002.

      Steven C. Choquette, Holland & Hart, L.L.P., Denver, Colorado, Attorney for Petitioner.
    Lloyd C. Kordick, Colorado Springs, Colorado, Joseph J. Archuleta, Denver, Colorado, Attorneys for Respondent.
    J. Gregory Walta, Colorado Springs, Colorado, Attorneys for Amicus Curiae, Colorado Trial Lawyers Association.
   Justice COATS

delivered the Opinion of the Court.

Allstate Insurance Company petitioned for review of the judgment of the court of appeals in Huizar v. Allstate Insurance Co., 32 P.3d 540 (Colo.App.2001) (Huizar II), affirming an award of attorney fees in favor of (Horia Huizar. The district court awarded attorney fees for Huizar's successful challenge to a provision of the insurance contract that allowed Allstate to litigate de novo the same issues that had already been resolved by arbitration. The court of appeals found that an award of attorney fees was permitted by the express terms of the contract and, in any event, by the public policy considerations articulated by this court in declaring the de novo trial provision of the insurance contract void as against public policy. See Huizar v. Allstate Ins. Co., 952 P.2d 342 (Colo.1998) (Huizar I). Because we find that the contract cannot be construed to permit an award of attorney fees under the cireumstances of this case and neither the statutes nor policy considerations upon which we relied in Hwi-zar I create a new exception to the rule that each party must bear its own attorney fees, the judgment of the court of appeals is reversed and the case is remanded for further proceedings.

L.

The dispute resulting in the attorney fees award at issue in this case grew out of a one-car accident in which Gloria Huizar was injured. Ms. Huizar suffered head and neck injuries when the automobile in which she was being driven by her neighbor crashed into a curb. Alstate Insurance Company, which was Huizar's insurer, paid her medical expenses pursuant to the personal injury protection coverage of her policy. Because her neighbor was uninsured, however, Huizar also looked to Allstate for additional coverage under the uninsured motorist provisions of her policy.

When the parties were unable to agree on the amount of benefits she should receive, Huizar invoked a provision in the policy that allowed either party to call for arbitration of claim disputes. The arbiter awarded Huizar $30,000, plus interest and costs. Allstate then sought a trial de novo, permitted by the policy whenever an arbitration award exeeed-ed the $25,000 minimum liability coverage required by section 10-4-609, 3 CRS. (1997)(incorporating the minimum limits as set forth in the Financial Responsibility Act, § 42-7-108, 11 C.R.S. (1997)). In response, Huizar moved to dismiss the action and requested that the trial court docket the arbiter's award.

The trial court concluded that the provision permitting a trial de novo violated public policy and was void. It therefore confirmed the arbitration award and entered judgment for Ms. Huizar for the $80,000, interest, and costs. On appeal, the court of appeals reversed. Huizar v. Allstate Ins. Co., 982 P.2d 889 (Colo.App.1996). This court granted Huizar's petition for writ of certiorari and reversed the judgment of the court of appeals, holding that while no single statement of public policy contained in any statutory or constitutional law directly prohibited the trial de novo clause, by invalidating arbitration, which had already been completed, it needlessly increased costs, diluted uninsured motorist coverage, impeded timely resolution of claims, unreasonably burdened the right of access to the courts, and rendered arbitration a less effective means of dispute resolution, violating the public policy of Colorado favoring fair, adequate, and timely resolution of uninsured motorist claims. Huizar I, 952 P.2d at 345.

On remand, although the trial court substantially reduced Huizar's request as unreasonable, it awarded her attorney fees of $35,000 for successfully challenging the validity of the trial de novo provision and an additional $4,850 for successfully litigating the attorney fees issue. While the trial court characterized Allstate's actions as attempting to avoid its policy obligations and noted the irony that would result from disallowing an award of attorney fees incurred in winning "this public policy fight," the trial court concluded only that Huizar was entitled to fees by the express provisions of the policy obligating Allstate to defend an insured person and pay reasonable expenses incurred at Allstate's request.

On direct appeal, the court of appeals affirmed, not only agreeing with the trial court's construction of the contract but also holding that the public policy considerations articulated by this court in Huizar I "should be interpreted to authorize the award of fees under the limited cireumstances of this case." See Huizar II, 32 P.3d at 548. Allstate sought further review of that decision by this court.

IL.

In the absence of an express statute, court rule, or private contract to the contrary, attorney fees generally are not recoverable by the prevailing party in a contract or tort action. Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975); Bernhard v. Farmers Ins. Exch., 915 P.2d 1285, 1287 (Colo.1996); Bunnett v. Smallwood, 793 P.2d 157, 160 (Colo.1990). This reasoning is based on the so-called American Rule, which requires each party in a lawsuit to bear its own legal expenses. Bernhard, 915 P.2d at 1287.

The rationale supporting the rule includes a number of broad policy considerations. First, since litigation is at best uncertain, one should not be penalized for merely defending or prosecuting a lawsuit. Second, requiring each party to be responsible for its own fees is thought to encourage settlement. Moreover, the poor might be unjustly discouraged from instituting actions to vindicate their rights if the penalty for losing included the fees of their opponents' counsel. CL Farmer v. Arabian Am. Oil Co., 379 U.S. 227, 285, 286-89, 85 S.Ct. 411, 183 LEd.2d 248 (1964) (Goldberg, J., concurring). Additionally, the litigation and proof of what constitutes reasonable attorney's fees would pose a substantial burden for judicial administration. Fleischmann Distilling Corp. v. Maier Brewing Co., 8386 U.S. 714, 718, 87 S.Ct. 1404, 18 LEd.2d 475 (1967); Oelrichs v. Spain, 82 U.S. (15 Wall.) 211, 21 LEd. 48 (1872); Bernhard, 915 P.2d at 1287.

A.

Even the general rule requiring each party in a contract action to bear its own legal expenses permits the parties to agree otherwise by express provision in the contract. Agritrack, Inc. v. DeJohn Housemoving, Inc., 25 P.S8d 1187, 1191 (Colo.2001). Both the trial court and the court of appeals found such an express provision for the recovery by Huizar of attorney fees in language of the policy obligating the insurance company to "defend an insured person sued as the result of a covered auto accident" and to pay as part of that defense any "other reasonable expenses incurred at [the insurance company's] request." The court of appeals analogized Allstate's exercise of its trial de novo right under the uninsured motorist provisions of the policy to a suit against Huizar for declaratory judgment. It therefore found that Allstate was obligated by the terms of the policy to defend Huizar against its own "suit" and to pay her attorney fees as reasonable expenses incurred at Allstate's request.

The interpretation of an insurance policy is a matter of law, which an appellate court reviews de novo. See Union Ins. Co. v. Houtz, 883 P.2d 1057, 1061 (Colo.1994). An insurance policy is a contract, which should be interpreted consistently with the well-settled principles of contractual interpretation. Chacon v. Am. Fomily Mut. Ins. Co,, 788 P.2d 748, 750 (Colo.1990). The words of the contract should be given their plain meaning according to common usage, and strained constructions should be avoided. Allstate Ins. Co. v. Starke, 797 P.2d 14, 18 (Colo.1990). Further, the meaning of a contract must be determined by examination of the entire instrument, and not by viewing clauses or phrases in isolation. U.S. Fid. & Guar. v. Budget Rent-A-Car Sys., Inc., 842 P.2d 208, 218 (Colo.1992)(citing Kuta v. Joint Dist. No. 50(J), 799 P.2d 379, 382 (Colo. 1990).

Following these principles, the language of the insurance policy at issue here cannot be reasonably construed to obligate the insurer to defend the insured against a claim of the insurer itself, much less to pay the insured's legal expenses to challenge the validity of the provisions of the contract. It is clear from the organization of the policy and the location of its reference to payment of expenses, the fact that other sections of the policy contain different provisions concerning attorney fees, and the context and express descriptions of the insurer's obligations that the insurer's obligation to defend extends only to suits by third parties with claims against the insured person.

Organizationally, the contract is divided into a number of "Parts," each dealing with a different type of coverage, and it includes a separate section devoted exclusively to "General Provisions." The language relied on by both lower courts does not appear in any generally applicable provision of the policy but in "Part 1," entitled "Automobile Liability Insurance," which is devoted specifically to an insured person's liability for bodily injury or destruction of property. Other "Parts" of the policy are expressly devoted to personal injury suffered by the insured, damage to the insured's vehicle, and uninsured or underinsured motorist coverage. When a contract is organized into separate parts, a provision or definition found in one part or section of the contract is not necessarily intended to apply to other parts. See Int'l Technical Instruments, Inc. v. Eng'y Measurements Co., 678 P.2d 558, 561-62 (Colo.App.1983)(concluding that where clause in question appeared only under one particular heading of contract and nowhere else, its applicability was properly limited to the particular heading); Grant v. State Farm Fire and Cas. Co., 638 So.2d 986 (Fla.1994)Gf the definition provided in one section of the policy is inapplicable to the coverage at issue in another section, a court may be compelled to search elsewhere for a sensible and appropriate definition); see generally 16 Samuel Williston, A Treatise On the Law of Contracts § 49:14, at 79 (Richard A. Lord ed., 4th ed.1990).

Nothing in either the context or specific language of the insurer's promise to defend and pay reasonable expenses suggests any intent for it to apply beyond the "Part" of the contract in which it is found. The contract is organized according to different coverages and the respective obligations of the parties with regard to each. Those "Parts" of the contract dealing with Personal Injury Protection, for example, separately provide for arbitration and impose a different obligation on the insured to pay attorney fees in limited, specific cireumstances. The trial de novo provision of "Part 5" of the contract, treating uninsured and underinsured motorist coverage, was clearly not intended to be governed by the requirement for the insured to defend against liability suits, as evidenced by its own requirement that each party bear its own costs and attorney fees. Perhaps most indicative of its intended scope, the language obligating Allstate to pay other reasonable expenses incurred at its request is one of several obligations of the insurer limited by the clause, "When we defend an insured person wunder this Part" (emphasis added).

From both the context and plain meaning of the terms, it is clear that the insurer's duty to defend described in "Part 1" of the contract, the Part dealing with lability for personal injury and property damage, is intended to apply only to suits against the insured person by third parties. Apart from the fact that the insured's coverage for his own personal injury and property damage are treated elsewhere in the contract, the term liability insurance is generally used to refer to the insured's liability to a third party. See Black's Law Dictionary 806 (ith ed. 1999) (Liability insurance is "[aln agreement to cover a loss resulting from one's liability to a third party.... The insured's claim under the policy arises once the insured's liability to a third party has been asserted.") If it were not sufficiently clear from the title and seope of "Part 1" alone that a defense against a claim of Hability necessarily refers only to a suit by a third person, the policy provision specifically describes the defense Allstate must provide as one in which Allstate "will choose the counsel," and one in which Allstate "may settle any claim or suit." These provisions are simply incompatible with any intent to require the insurance company to defend or pay attorney fees to the insured in an action by or against the insurance company itself.

Despite the clear difference in bargaining power between insurance companies and individuals seeking insurance coverage, see Huizar I, 952 P.2d at 344, insurance policies are contracts, which must be construed according to their plain meaning and well-settled principles of contract interpretation. Chacon, 788 P.2d at 750. Insurance contracts may be subject to serutiny for provisions that unduly compromise an insured's interests and are therefore rendered unenforceable, Huizar I, 952 P.2d at 344, but clear and unambiguous provisions cannot simply be rewritten by the courts. See Kansas City Life Ins. Co. v. Pettit, 99 Colo. 268, 61 P.2d 1027 (1936)(court cannot make a new contract in lieu of one originally entered into by parties themselves, but court must give effect to natural meaning of language actually used). The insurance contract at issue here does not contain any express exception to the well-established rule that each party must bear its own legal expenses that is applicable to Ms. Huizar's successful challenge to the trial de novo provision of the contract.

B.

Without regard to the express provisions of the contract, the court of appeals also held that the public policy considerations upon which this court found the trial de novo clause void in Hwizar I justify an award of attorney fees that would otherwise absorb all of the uninsured motorist monies awarded by arbitration. Although substantially agreeing with this outcome, one specially concurring panel member would have found a statutory exception to the general rule that each party pay its own legal expenses "because of the public policy the supreme court associated with § 10-4-609," which requires insurance companies to provide the same coverage that an insured could collect if the owner or driver were insured as required by law. Both opinions, however, would limit the exception to the cireumstances of this case.

Colorado does recognize several exceptions to the general rule that attorney fees are not recoverable by the prevailing party in the absence of an express statute, court rule, or private contract to the contrary, but we have previously made clear that the creation of a new exception is "a function better addressed by the legislative than the judicial branch of government." Bernhard, 915 P.2d at 1287-88. Numerous statutes already expressly provide for attorney fees awards, see Ramos v. Lamm, 539 F.Supp. 730, 757 app. B (D.Colo.1982)(listing eighty-five such statutes), aff'd in part, rev'd in part, (718 F.2d 546 (10th Cir.1983)), but an exception to the general rule against fee awards will not be inferred from general provisions requiring compensation that do not explicitly address attorney fees. See Leadville Water Co. v. Parkville Water Dist., 164 Colo. 362, 365, 436 P.2d 659, 660 (1967)(declining to interpret "just compensation" as applied to eminent domain law to include attorney fees in absence of statute expressly providing it); see also City of Holyoke v. Schlachter Farms, R.L.L.P., 22 P .3d 960, 961 (Colo.App.2001). Apart from statutes expressly allowing attorney fee awards in particular classes of actions, the legislature has also provided for the recovery of attorney fees incurred as a result of unjustified litigation, but only upon a showing that the litigation was "substantially frivolous, substantially groundless, or substantially vexatious". § 183-17-101, 5 C.R.S. (2001).

On its face, section 104-609 makes absolutely no reference to attorney fees, and nothing in the rationale of Huizar I indicates a retreat from Bernhard, 915 P.2d at 1288 (new exceptions better left to legislature), or suggests the discovery of a legislative intent to require that uninsured motorist coverage guarantee recovery, over and above legitimate legal expenses. The result in Hwigar I was dictated by a combination of legislatively expressed policy considerations, including that an uninsured motorist award not be needlessly diluted by expenses incurred solely at the pleasure of the insurer. Nowhere did we suggest that legal expenses required to establish an uninsured motorist award, or for that matter the invalidity of policy provisions, were always needless or evidence of an impermissible attempt to dilute the award. Quite the contrary, we made clear that the additional expenses, including attorney fees, incurred as the result of the trial de novo provision of the policy, needlessly diluted an arbitration award because they were caused without regard to the existence of reasonable grounds for believing the earlier award to be erroncous. Huizar I, 952 P.2d at 347-48 ("Because nothing survived from the arbitration, the proceeding was reduced to a meaningless exercise or, at best, a non-binding guide to evaluating the claim for settlement purposes.")

By confining its new exception to the "limited," Huizar II, 32 P.3d at 548, or "unique," id. at 550 (Dailey, J. specially concurring), cireumstances of this case, rather than suggesting an exception of general applicability, the court of appeals strongly implies a result dictated by the equities of the case. We have rejected awards of attorney fees on the basis of the equities of individual cases in the past, see Bunnett, 793 P.2d at 161, and although the result may seem ironic, the equities or cireumstances of this case do not compel an exception to the American rule. In particular, the ultimate outcome of litigation, including a determination that a contract provision is void as against public policy, does not by itself demonstrate that the litigation was unnecessary. To the contrary, extensive legal expenses may well be as indicative of the difficulty and closeness of the issues being litigated as any improper motive or tactic of an opponent. To the extent that forcing an opponent to incur substantial legal expenses and ultimately suffering defeat are evidence of groundless and vexatious proceedings, they are already accounted for by statute and need no further exception to the general rule. (2001). See § 18-17-101, 5 CRS.

In this case, litigation over the validity of the previously untested trial de novo provision of the insurance policy was clearly not groundless. Of the ten judges considering the issue, five found no violation of public policy, and but for the final, discretionary review in this court, Ms. Huizar would not have succeeded at all. Despite baving wide latitude in the matter, see § 138-17-101(1), the trial court did not find that any particular behavior of Allstate violated section 13-17-101. It merely agreed with Huizar that the express provisions of the contract entitled her to the award. In the absence of findings that Allstate's reliance on the provisions of its insurance policy was substantially frivolous, groundless, or vexatious, no statutory or existing policy exception to the general rule permits an award of attorney fees.

TI.

Because the specific language of the insurance contract cannot be interpreted to permit an award of attorney fees under the cireum-stances of this case and neither the statutes nor legislatively expressed policy considerations relied upon in Huizar I create an exception to the rule that each party in a contract action bear its own legal expenses, the judgment of the court of appeals is reversed and the case is remanded for further proceedings consistent with this opinion.

      . We granted certiorari to answer the following questions:
      1) Whether the court of appeals' majority violates Colorado law by applying a provision from an Allstate automobile insurance policy's third-party liability coverage Part to the policy's wholly separate, first-party uninsured/underinsured motorist ("UM/UIM") Part in order to award respondent's attorney fees in a UM/UIM dispute.
      2) Whether the court of appeals erred in interpreting this court's decision in Huizar v. Allstate Ins. Co., 952 P.2d 342 (Colo.1998) and Colo.Rev.Stat. § 10-4-609 as creating a public policy or statutory exception to the American Rule.

      . Exceptions to the American rule recognized in Colorado include those based on: the "common fund" doctrine, County Workers Comp. Pool v. Davis, 817 P.2d 521 (Colo.1991); a party's bad faith and lack of candor in dealing with the court, Johnston v. Dist. Court, 196 Colo. 1, 580 P.2d 798 (1978); breach of fiduciary duty or breach of trust, Buder v. Sartore, 774 P.2d 1383 (Colo.1989); Heller v. First Nat'l Bank, N.A., 657 P.2d 992 (Colo.App.1982); and a party's wrongful act proximately causing the wronged party to become engaged in litigation with others, Publix Cab Co. v. Colo. Nat'l Bank, 139 Colo. 205, 338 P.2d 702 (1959). See Bernhard, 915 P.2d at 1287 n. 3.

      . After the trial judge declared the provision void, a three-judge panel of the court of appeals reversed, only to have the trial judge affirmed by this court in a 4-2 decision.