author: Judge ROTHENBERG.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Brian V. PRENDERGAST, Defendant-Appellant.
    No. 02CA1148.
    Colorado Court of Appeals, Div. V.
    Oct. 9, 2003.
    Certiorari Denied April 12, 2004.

      Ken Salazar, Attorney General, John D. Seidel, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Robert T. McAllister, P.C., Robert T. McAllister, Denver, Colorado, for Defendant-Appellant.

       Justice KOURLIS does not participate.
      Justice BENDER would grant as to the following issue: Whether the court of appeals erred in affirming the trial court's denial of the defendant's motion for mistrial when the evidence presented at trial showed that the defendant had not been barred by the NASD from engaging in the buying and selling of securities.

   Opinion by

Judge ROTHENBERG.

Defendant, Brian V. Prendergast, appeals the judgment of conviction entered on a jury verdict finding him guilty of twelve counts of securities fraud and one count of theft. We affirm.

Defendant was in the insurance industry and became involved with various business ventures. In 1995, the National Association of Securities Dealers (NASD) notified him of a pending investigation concerning him. Thereafter, NASD filed a complaint against him, censured him, and barred him from associating with any NASD member. The sanction became final after defendant's appeal was denied.

In 1996, the Commodity Futures Trading Commission (CFTC) filed an administrative action against defendant and obtained a permanent injunction barring him from participating in commodities trading.

In 1997, defendant filed for voluntary personal bankruptcy, and in that same year, he incorporated a start-up company. During 1997 and 1998, he sold shares of equity in the company. He represented to potential investors that the money they paid for the shares would serve as capital for the company and promised them a return on their investments. He also executed promissory notes, typically payable within three months, to certain of the investors.

The company purported to provide a health insurance program and agency in the Middle East in connection with hospital development. But defendant represented to some investors that the company had different business objectives, including smart card technology and investments in various government and foreign bonds.

In 2000, defendant was charged with the theft of approximately $85,000 from six investors. He was also charged with eighteen counts of securities fraud based on his misappropriation of company funds and his failure to disclose material information, including: (1) the risk involved in investing in a start-up business; (2) his pending personal bankrupt cy proceeding; (8) his status with the NASD; and (4) investigations of him by the CFTC and the Securities and Exchange Commission (SEC).

Following trial, a jury convicted defendant of one count of theft and twelve counts of securities fraud.

L.

Defendant first contends the trial court erred in instructing the jury on the definition of "materiality." He maintains that the definition given was incorrect because it was a civil, objective standard and was inconsistent with § 11-51-501(1)(b), C.R.8.2002. We disagree.

It is the duty of the trial court to instruct the jury properly on all matters of law. People v. Stewart, 55 P.3d 107 (Colo.2002); People v. Garcia, 28 P.3d 340 (Colo.2001).

We review a jury instruction to which a defendant objected at trial using a harmless error analysis. Under this standard, we will reverse if the error affects the substantial rights of the defendant. Where the error is not of constitutional dimension, it will be disregarded if there is not a reasonable probability that the error contributed to the defendant's conviction. Crim. P. 52(a); People v. Garcia, supra.

In determining the propriety of a particular jury instruction, the instructions should be viewed as a whole. If two instructions are in direct conflict and one of the instructions is an incorrect and clearly prejudicial statement of law, the fact that the other instruction contains a correct statement of law cannot cure the error. People v. Riley, 708 P.2d 1859 (Colo.1985).

The Colorado Securities Act (CSA) is a remedial act intended to protect investors and maintain public confidence in securities markets while avoiding unreasonable burdens on participants in capital markets. Section 11-51-101(2), C.R.8.2002. The CSA is construed broadly to effectuate these purposes. People v. Rivera, 56 P.3d 1155 (Colo.App.2002).

As relevant here, § 11-51-501(1)(b) makes it unlawful for any person in connection with the offer or sale of any security, directly or indirectly, "(tlo make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in light of the cireum-stances under which they were made, not misleading."

Section 11-51-501(1)(b) is the analogue of § 10(b) of the Securities and Exchange Act of 1984, 15 U.S.C. § 78J(b) (2002). See § 11-51-101(8), C.R.S.2002; People v. Rivera, supra; see also 17 C.F.R. § 240.10b5 (2002). Thus, interpretations of federal law are persuasive in interpreting the CSA. People v. Rivera, supra.

When construing a Colorado seeurities statute, however, we apply fundamental principles of statutory construction before resorting to case law regarding similar federal statutes and regulations. Rosenthal v. Dean Witter Reynolds, Inc., 908 P.2d 1095 (Colo.1995).

In construing a statute, our primary task is to ascertain and give effect to the intent of the General Assembly, as expressed in the language it selected, giving the words selected their plain and ordinary meaning. If the language is clear and the intent appears with reasonable certainty, there is no need to resort to other rules of statutory construction. People v. Shinaut, 940 P.2d 380 (Colo. 1997). We read and consider statutes as a whole, construing each provision in harmony with the overall statutory scheme, structure, and purpose. Whitaker v. People, 48 P.3d 555 (Colo.2002).

A.

Neither the CSA nor the federal statute or regulations define the term "material." See § 11-51-201, C.R.8.2008; 15 U.S.C. § 78j(b); 17 C.F.R. $ 240.10b5; see also People v. Riley, supra, 7408 P.2d at 1364 n. 4 (in CSA prosecution, looking to definitions of "material" and "fraud" in the context of eriminal perjury, civil fraud, and fraudulent misrepresentation).

In Goss v. Clutch Exchange, Inc., 701 P.2d 33, 86 (Colo.1985), a civil action for damages under the CSA, the Colorado Supreme Court held the "standard of materiality adopted with respect to federal securities statutes should be applied in actions arising under the [CSA]." The court concluded a misrepresented or omitted fact was material under the CSA "if there is a substantial likelihood that a reasonable investor would consider the matter important in making an investment decision." Goss v. Clutch Exch., Inc., supra, 701 P.2d at 36.

The Goss court stated that whether the misrepresented or omitted fact is important turns on "whether a reasonable investor would regard it as significantly altering the 'total mix' of information made available." Goss v. Clutch Exch., Inc., supra, TOL P.2d at 36 (quoting TSC Indus., Inc. v. Northway, Inc., 426 U.S. 488, 449, 96 S.Ct. 2126, 2132, 48 L.Ed.2d 757 (1976)).

Other divisions of this court have cited the Goss standard in the context of criminal securities fraud prosecutions. See People v. Rivera, supra (citing Goss in determining an evidentiary issue); People v. Campbell, 58 P.3d 1148 (Colo.App.2002); see also People v. Riley, supra.

Here, the jury was instructed on the elements of the erime of securities fraud in accordance with § 11-51-501(1)(b):

1. That the defendant ...
3. in connection with the offer, sale or purchase of any security,
4. directly or indirectly,
5. willfully,
6. (a) made any untrue statement of material fact,
_0r_.
(b) omitted to state a material fact nee-essary in order to make the statements made, in light of the cireumstances under which they were made, not misleading.
The court gave a separate instruction defining "material fact":
A misrepresented or omitted "fact" is considered "material" if there is a substantial likelihood that a reasonable investor would consider the matter important in making an investment decision. Whether or not a misrepresented or omitted fact is important turns on whether a reasonable investor would regard it as significantly altering the total mix of information made available.

Defendant objected to the materiality instruction. He argued that the elements instruction should stand alone, explaining: "There was no attempt in the criminal statute to define [materiality] as what a reasonable person would do. As a matter of fact, it's just the opposite. It's what a person in those factual cireumstances would do."

The trial court overruled his objection, reasoning that "the statute upon which Hability attaches is the same" for either a eriminal prosecution or civil action. We agree.

The CSA's statutory structure demonstrates the General Assembly's intent to define general provisions applicable to both criminal and civil violations.

Part 2 of the CSA sets forth a single set of definitions. Part 5 defines fraud and other prohibited conduct, as alleged here under § 11-51-501.. Part 6 establishes criminal and civil liability for violations of § 11-51-501. A "willful" violation is criminal and constitutes a class 3 felony. Section 11-51-603(1), C.R.S.2002.

Civil liability arises from violations of § 11-51-501 under other cireumstances. Section 11-51-604(8), C.R.$.2002 (any person who "recklessly, knowingly, or with an intent to defraud" sells or buys a security in violation of § 11-51-501(1) is liable for legal or equitable relief); § 11-51-604(4), C.R.S.2002 (any person who sells a security in violation of § 11-51-501(1)(b) to a person who has imputed knowledge of untruth or omission is Hable for limited damages).

Definitions derived from civil law may be applied to criminal statutes. See People v. Riley, supra; see also State v. Ross, 104 NM. 28, 715 P.2d 471, 475 (Ct.App.1986)(recognizing reasoning from civil case that securities fraud statute is not identical to common law fraud).

In People v. Riley, supra, the Colorado Supreme Court upheld the constitutionality of the version of § 11-51-501(1)(b) then in effect. In so holding, the court acknowledged that it had not yet defined the term "material" in the context of this statute. The court observed, however, that "such terms have been defined and applied in many cases," such as criminal perjury, civil fraudulent concealment, and civil fraud cases. People v. Riley, supra, 708 P.2d at 1864 n. 4; see also Bridwell v. State, 804 S.W.2d 900, 908 & n. 4 (Tex.Crim.App.1991)(adopting objective standard of materiality as applied in federal cases, and explaining that under the Texas Securities Act, "[mlateriality is the one common-law element still strongly viable under federal securities fraud laws"); ef. Koch v. Koch Indus., Inc, 208 F.3d 1202 (10th Cir.2000)(distinguishing objective materiality standard applied to cases brought under Texas Securities Act from subjective standard applied to cases brought for common law fraud and other state statutory violations).

We thus interpret the definitions in Part 2 to apply generally to all parts of the CSA, whether those parts are at issue in a civil or criminal case. See Whitaker v. People, supra.

B.

We also reject defendant's related contention that the materiality instruction is inconsistent with the statutory phrase, "in light of the circumstances under which they were made."

That phrase does not modify the term "material fact," but simply requires the fact finder to determine whether the statement at issue was misleading under the cireum-stances.

Accordingly, we conclude the trial court did not err in instructing the jury on the definition of "materiality."

IL.

Defendant next contends the trial court's materiality instruction "obviously misled" the jury and the court also erred in responding to a jury question regarding materiality that was posed during deliberations. We disagree.

When a jury during deliberations communicates any misunderstanding or confusion relating to a matter of law central to the guilt or innocence of the defendant, the trial court should give an additional or supplemental instruction responding to the jury's inquiry. However, no additional or supplemental instruction is required when the original instructions adequately inform the jury. People v. Mendez, 897 P.2d 868 (Colo.

It is presumed the jury understood and heeded the trial court's instructions, but this presumption is rebutted where a jury affirmatively indicates it has a fundamental misunderstanding of an instruction it was given. Leonardo v. People, 728 P.2d 1252 (Colo.1986).

Here, during the jury's deliberation, the foreperson submitted the following question:

On Counts 2 through 18 [alleging violations of § 11-51-501(1)(b) ], are the standards for the crime of securities fraud (by omission or misrepresentation) to be considered in relation to a reasonable prudent person in regard to material facts or based on each individual person and the evidence presented regarding each individual sale?

Before responding, the trial court properly consulted counsel, and defendant again contended the materiality instruction was incorrect. Over his objection, the trial court instructed the jury that the materiality instruction, "which defines material fact, is the standard you should apply."

Contrary to defendant's contention, we conclude the jury's question did not affirmatively indicate a fundamental misunderstanding of either instruction, and no supplemental instruction was necessary because the original instructions adequately informed the Jury.

We therefore conclude the trial court's response to the jury's question was proper.

IIL

Defendant next contends the trial court erred in allowing factual and legal opinion testimony by the deputy securities commissioner for the State of Colorado. Defendant asserts that this witness made two incorrect statements of law and that these misstatements usurped the province of the jury. Relying on Specht v. Jensen, 858 F.2d 805 (10th Cir.1988), and United States v. Scop, 846 F.2d 185 (2d Cir.1988), defendant contends such testimony also invaded the province of the court. We disagree.

Expert testimony is admissible when the expert's special knowledge will assist the trier of fact to understand evidence or to determine a fact in issue. CRE 702; People v. Rivera, supra. Opinion testimony that is otherwise admissible is not objectionable because it embraces an ultimate issue of fact. CRE 704; People v. Rivera, supra.

Trial courts have broad discretion to determine the admissibility of expert testimony pursuant to CRE 702, and the exercise of that discretion will not be overturned absent an abuse of discretion. Lanari v. People, 827 P.2d 495 (Colo.1992).

Here, the prosecution requested that the witness be qualified as an expert in "the Colorado Securities Act and its application [to] securities in general." After defendant conducted a brief voir dire, the trial court qualified the witness as an expert under CRE 702 to offer opinion testimony regarding the Colorado securities laws.

The witness then testified without objection that:

[I]n the consumer area, it's what we call buyer beware. ... Securities law is different. Securities law is premised on seller beware. The reason for that is, quite frankly, when you are involved in a securities transaction, for example, you may have a stock certificate that may be nothing more than two pages or the front and back of a piece of paper. So what do I know about this? How is this different [from a tangible good]? About all I know about this is I can probably tear it in half, I can fold it.... But do I know what this constitutes? [Slecurities laws have developed such that the person offering and selling the security that is seeking the investment from another person is obliged to make full and fair disclosure of all material facts to that prospective buyer.

(Emphasis added.)

The witness mentioned "full and fair disclosure" again in his testimony, and the jury did not receive any instructions referring to that phrase.

The witness also defined materiality, stating that:

Materiality means that ... there's a substantial likelihood that a reasonable investor would consider the misstated or omitted fact important in deciding whether to buy or not to buy or to sell or not to sell a security. .... Important means that the same reasonable investor would consider that misstated or omitted fact as significant in changing or altering the total mix of information that's been provided to them about this particular investment.

At the close of the evidence, the trial court instructed the jury to follow the law as given to them by the court:

It is [the trial judge's] job to decide what rules of law apply to the case. While the lawyers may have commented during the trial on some of these rules, you are to be guided by what I say about them. You must follow all of the rules as I explain them to you. Even if you disagree or don't understand the reasons for some of the rules, you must follow them. No single rule describes all the law which must be applied. Therefore, the rules must be considered together as a whole.

The court also gave the jury the standard instruction regarding expert testimony: "You have heard witnesses who have testified as experts. You are not bound by the testimony of experts, [and] their testimony is to be weighed as that of any other witness. It is entirely your decision to determine what weight shall be given their testimony."

There can be a fine line between impermissible expert testimony about legal issues and permissible expert testimony about a standard of care or an expert's conclusion based upon mixed questions of facts and law. However, it is within the province of the trial court, and not the expert witnesses, to tell the jury what the law is. See v. Jensen,

In Specht v. Jensen, supra, 858 F.2d at 809, the court explained the harm that may occur when an expert-there, an attorney-was allowed to usurp the trial court's function:

[HJarm is manifested in at least two ways. First ... the jury may believe the attorney-witness is more knowledgeable than the judge in a given area of the law.... Second, testimony on ultimate issues of law by the legal expert is inadmissible because it is detrimental to the trial process. If one side is allowed the right to call an attorney to define and apply the law, one can reasonably expect the other side to do the same. ... [It can be expected that both legal experts will differ over the principles applicable to the case. The potential is great that jurors will be confused by these differing opinions, and that confusion may be compounded by different instructions given by the court.

However, the trial court also explained the distinction between testimony on the ultimate factual questions, which aids the jury in reaching a verdict, and testimony that articulates and applies the relevant law and circumvents the jury's decision-making function by telling it how to decide the case.

In Specht, the expert testified for a full day about "nearly every element of the plaintiffs burden of proof." Specht v. Jensen, supra, 853 F.2d at 808. The court concluded the expert's testimony was so pervasive as to supplant both the court's duty to set forth the law and the jury's ability to apply this law to the evidence. The court held admission of this testimony was not harmless.

Similarly, in Scop, the court concluded expert testimony exceeded the limits of Fed. R.Evid. 704. There, the prosecution called the chief investigator of the regional SEC office as an expert witness. He testified that based on the trial evidence, it was his opinion that: "[the stock] was manipulated and that certain individuals were active participants and material participants in the manipulation of that stock.” United States v. Scop, supra, 846 F.2d at 138. At other times, the witness “corrected himself in mid-sentence to include the same elements in his answer” and “consciously used the same formulation” of these terms. United States v. Scop, supra, 846 F.2d at 138.

The court in Scop concluded that because the witness repeatedly used statutory and regulatory language indicating guilt, without sufficient explanation of the language used, his testimony was inadmissible.

Here, by contrast, the expert witness gave a brief overview of securities law, and his opinion was based on his independent review of the facts. Further, his statements concerning materiality were legally correct, see People v. Rivera, supra; People v. Campbell, supra, as were his statements concerning “full and fair disclosure.” See Mills v. Elec. Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970)(recognizing congressional purpose of § 10(b) of the Securities and Exchange Act of 1934 is to ensure full and fair disclosure to shareholders); Boettcher & Co., Inc. v. Munson, 854 P.2d 199 (Colo.1993).

We acknowledge that the term “full and fair disclosure” is not expressly referenced in the CSA, and that fact was brought out on cross-examination of the expert. Nevertheless, the concept of full .and fair disclosure is implicit in § 11—51—501(l)(b), as it is in the federal statutes and regulations.

The expert witness’s statements were not phrased in a prejudicial manner, were not repeated so as to give rise to the inference that he was consciously using the same formulation, were not so pervasive as to supplant the court’s duty to set forth the law, and were clarified during cross-examination. Thus, Specht and Scop are distinguishable.

To the extent defendant contends the expert’s testimony usurped the province of the jury, we disagree. This argument was rejected in People v. Rivera, supra, insofar as it related to the expert testimony defining “security.” We conclude the balance of the expert’s testimony here likewise did not usurp the jury’s role in deciding any factual issues. ’ '

Because the trial court properly instructed the jury and the witness’s special knowledge assisted the jury, we conclude the trial court did not commit error, plain or otherwise, in allowing the testimony of the deputy securities commissioner.

IV.

Relying on People v. Spoto, 795 P.2d 1314 (Colo.1990), defendant next contends the trial court abused its discretion by admitting into evidence the NASD complaint and decree. Again, we disagree.

As a threshold matter, we note that the documents at issue were the NASD “Complaint and Decree,” designated as People’s exhibits 71 and 72.. Exhibit 71 is the NASD decision, but exhibit 72 is not part of the record on appeal. We therefore must presume its regularity. See People v. McCullough, 6 P.3d 774 (Colo.2000).

People v. Spoto, supra, addresses the admissibility of evidence of prior bad acts- under CRE 404(b). But the trial court also may admit the evidence under another evi-dentiary theory without complying with the procedural safeguards required by CRE 404(b). See People v. Campbell, 58 P.3d 1148 (Colo.App.2002); People v. Rivera, supra.

In Rivera, as here, the defendant was charged with criminal securities fraud for soliciting investments-in her business. The prosecution offered certain evidence of prior bad acts, including negative business information and the prior felony convictions of another person within the business. The prosecution contended this evidence was proof of material facts that defendant concealed.

The division in Rivera concluded the evidence was admissible, reasoning that in a securities fraud, case, the defendant’s prior misconduct was information that should have been disclosed to investors.

Similarly, here, the prosecution alleged that defendant had been sanctioned by the NASD and failed to disclose this fact to potential investors. The NASD document

was offered to show defendant had been sanctioned by NASD and to impeach an exhibit submitted by defendant. Further, the specific allegations were admissible, not just the fact of the NASD sanction, because it reflected the kind of information a reasonable investor would consider in making an investment. See People v. Rivera, supra. The document was also relevant to prove defendant's intent. See People v. Campbell, 58 P.3d 1148 (Colo.App.2002); see also Boeticher & Co., Inc. v. Munson, supra.

We therefore conclude the trial court's admission of the NASD documents and the information contained therein was proper under People v. Rivera, supra, and we perceive no abuse of discretion by the court in admitting these documents.

Given our conclusion, we need not address defendant's contention that the trial court erred in failing to provide a curative instruction.

v.

Defendant next contends the trial court abused its discretion by denying his motion for mistrial. We disagree.

A mistrial is a drastic remedy and is warranted only when prejudice to the accused is so substantial that its effect on the jury cannot be remedied by other means. The grant or denial of a mistrial is within the discretion of the trial court. People v. Ker-ber, 64 P.3d 930 (Colo.App.2002).

The trial court also has discretion to determine whether a prosecutor's statements constitute inappropriate prosecutorial argument, and it should consider the context in which the statements were made. A trial court is in the best position to evaluate the effects of allegedly prejudicial statements made by a prosecutor. People v. Richardson, 58 P.3d 1039 (Colo.App.2002).

The cumulative, prejudicial effect of prose-cutorial misconduct that so undermines the fundamental fairness of a trial as to cast serious doubt upon the reliability of the judgment of conviction may constitute plain error. People v. Jones, 882 P.2d 1086 (Colo.App. 1991).

Here, the prosecution called the vice president and district director of NASD Regulation to testify on the NASD proceedings against defendant. The witness testified to the scope and effect of the NASD decree, including the fact that defendant was not "barred from trading" and that the sanctions against him did not become final until after his appeal was completed in 2001.

After the director's testimony, defendant moved for a mistrial, explaining:

[We've created the wrong impression here that [defendant was] barred from the securities industry ... either practically, or legally, And, secondly, we have created this impression that this information should have been disclosed to potential [investors] that he was dealing with when, in fact, as long as it was on appeal [it is] as if it didn't exist.... frankly, I did not know what the effect of the decision was and what the effect of the appeal was until [the director] told us.

In denying defendant's motion for mistrial, the trial court acknowledged that defendant's NASD status was inaccurately phrased during trial. However, it found that all counsel believed the NASD order was in effect as of 1997, and that "there has not been, in the phrasing or questions or in the opening statements ... deliberate mischar-acterization of the evidence." The court further found that the jury "very clearly understands the legal effect and ramifications of the NASD's ruling." Accordingly, the trial court found no substantial prejudice was created by any mischaracterization of the questions.

We thus perceive no abuse of discretion in the trial court's denial of defendant's motion for mistrial.

VI.

Defendant next contends the trial court erred in denying his Crim. P. 29 motion for judgment of acquittal. He asserts that the prosecution did not prove he was censured and barred from association with any member of NASD, as alleged in the information. Again, we disagree.

Crim. P. 29(a) allows a court upon motion to order the entry of a judgment of acquittal if the evidence is insufficient to sustain a conviction of an offense.

When ruling on a motion for judgment of acquittal, the trial court must determine whether the evidence, viewed as a whole and in the light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a reasonable mind that the defendant is guilty of the charge beyond a reasonable doubt. We will not disturb the trial court's ruling on such a motion absent an abuse of discretion. People v. Jones, 990 P.2d 1098 (Colo.App.1999).

Here, the information stated:

In November 1997 the NASD proceedings were final and [defendant] was censured and barred from association with any member of the NASD in any capacity. [Defendant] failed to disclose the NASD investigation, the NASD complaint and/or the final decision to bar [defendant] from association with any member of the NASD to [six of the victims] prior to soliciting and accepting investment money from them.

Defendant did not move for a judgment of acquittal under Crim. P. 29 at the close of the prosecution's evidence or at the close of all of the evidence. However, after the court received the NASD director's testimony and before the prosecution rested, defendant stated the following: "In this case the defendant is charged in multiple counts, and the charge correctly, I think, states the sanction that was stated in the NASD decision, that, in fact, the defendant is sanctioned and barred from associating with any NASD member."

The trial court concluded the charging document correctly phrased the charge "in terms of, if you will, from associating with other NASD members."

Even assuming defendant properly moved for a judgment of acquittal, we conclude the information does not contain the misstatement of which defendant complained during the trial. Thus, we perceive no abuse of discretion by the trial court in this regard.

VIL

Finally, defendant contends the evidence was insufficient to sustain his theft conviction because he obtained control over the victims' money with their authorization. We disagree.

In reviewing an insufficiency of evidence claim, we view the evidence presented as a whole and in the light most favorable to the prosecution to determine whether the evi-denee is sufficient to support a conclusion by a reasonable person that the defendant is guilty beyond a reasonable doubt. The prosecution is entitled to the benefit of every reasonable inference that may be fairly drawn from the evidence, Kogan v. People, 756 P.2d 945 (Colo.1988); People v. Rivera, supra, even if the record also contains evidence to the contrary, People v. Morrow, 682 P.2d 1201 (Colo.App.1983).

As relevant here, a person commits theft when he or she knowingly obtains or exercises control over anything of value of another without authorization, or by threat or deception, and uses, conceals, or abandons the thing of value intending that such use, concealment, or abandonment will deprive the other person permanently of its use and benefit. Section 18-4-401(1)(b), C.R.8.2002.

The crime of theft by deception requires proof that the victim parted with something of value in reliance upon misrepresentations by the defendant. A misrepresentation is a false representation of a past or present fact or a promise to perform a future act made with the present intention not to perform the promise or future act. People v. Lewis, 710 P.2d 1110 (Colo.App. 1985).

Here, the relevant portion of the jury instruction given for the elements of theft stated, "without authorization or by threat or by deception."

Defendant's reliance upon People v. McCormick, 784 P.2d 808 (Colo.App.1989), is misplaced. In McCormick, a division of this court considered whether the defendant was authorized to take his murder victim's money and property. The division defined exercising control over property "without authorization" as meaning that "the owner of the property, or a person in possession of the property with the owner's consent, has not given the actor permission to exercise control over the property." People v. McCormick, supra, 784 P.2d at 810 (quoting People v. Edmonds, 195 Colo. 358, 578 P.2d 655 (1978)). The division concluded there can be no theft without wrongful appropriation of another's property.

Here, however, the jury instruction was phrased in the disjunctive, requiring proof of either lack of authorization or deception. Even assuming the victims initially authorized defendant to obtain control over their property, the evidence showed the investors relied upon defendant's misrepresentations when investing with defendant. The victims testified that they gave defendant their money as an investment in his company and did not know he used their money for personal purposes instead of its intended use as the company's start-up capital.

Viewing the evidence in the light most favorable to the prosecution, we therefore conclude the evidence was sufficient to support a finding beyond a reasonable doubt that defendant committed theft by deception.

Given our conclusions, we need not address defendant's alternative arguments based on People v. Clayton, 728 P.2d 728 (Colo.1986)(partners are coowners authorized to exercise control over partnership property); People v. Gracey, 940 P.2d 1050 (Colo.App.1996)(whether power of attorney granted defendant authority was question for jury); and People v. Treat, 198 Colo. 570, 568 P.2d 473 (1977)(no theft in the context of a simple debtor-creditor controversy). See People v. Morrow, supra.

Judgment affirmed.

Chief Judge DAVIDSON and Judge VOGT, concur.


source: Caselaw Access Project

author: Judge TAUBMAN.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Steven FRITSCHLER, Defendant-Appellant.
    No. 02CA0494.
    Colorado Court of Appeals, Div. III.
    Oct. 9, 2003.
    Rehearing Denied Dec. 24, 2003.
    Certiorari Denied April 5, 2004.

      Ken Salazar, Attorney General, John T. Bryan, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Jud Lohnes, Deputy State Public Defender, Denver, Colorado, for Defendant, Appellant.
   Opinion by

Judge TAUBMAN.

Defendant, Steven Fritschler, appeals the trial court order denying his Crim. P. 85 motion for postconviction relief. We affirm.

In exchange for the dismissal of other counts, defendant pleaded guilty to first degree aggravated motor vehicle theft, a class three felony, and misdemeanor counts of driving under the influence and second degree aggravated motor vehicle theft. Defendant initially received a deferred judgment and sentence, which was later revoked. Defendant was then resentenced to six years in the Department of Corrections (DOC), with his misdemeanor sentences to be served concurrently.

Defendant filed a Crim. P. 85(b) motion for reduction of sentence, and the trial court reduced his DOC sentence to four years. The court later ordered that the mittimus be corrected to reflect that defendant must serve a five-year period of mandatory parole upon completion of his DOC sentence, as required by § 18-1.3-401(1)(a)(V)(A), C.R.S. 2002.

Defendant then filed a Crim. P. 35(a) motion for postconviction relief, in which he argued that the addition of the mandatory parole term to his sentence violated his right The trial to equal protection of the laws. court denied the motion.

I.

As an initial matter on appeal, we note the parties' contentions regarding the applicability of the time bar for the filing of postconviction motions in § 16-5-402, C.R.S.2002, and the proper consideration of defendant's motion under Crim. P. 85(a) or (c).

However, because the trial court considered the issues on the merits, we elect to address defendant's appeal without resolving the various procedural arguments the parties have raised. See People v. Munkus, 60 P.3d 767, 769 (Colo.App.2002).

IL

Defendant contends his right to equal protection of the laws is violated because he is required to serve a term of mandatory parole, while sex offenders in the same felony class instead serve discretionary parole. We disagree.

A.

In People v. Friesen, 45 P.3d 784, 785 (Colo.App.2001), a division of this court rejected this argument, concluding that the different felony classifications merely set forth the penalty ranges for classes of offenses and do not create classes of offenders. The division determined that an offender's felony class alone does not create a classification for equal protection purposes, because each class encompasses many different crimes that do not involve the same or similar criminal conduct. Thus, no equal protection violation occurs because a defendant is only similarly situated with defendants who commit the same or similar acts, and nonsexual offenders are not similarly situated with sex offenders.

Defendant argues that Friesen was wrongly decided and we should decline to follow it. However, we disagree and conclude that it is persuasive with respect to this portion of defendant's equal protection argument.

B.

In a variation on the argument raised in Friesen, defendant also asserts that, because the purposes of parole are the same for all felony offenders, see § 17-22.5-102.5, C.R.S.2002, all felony offenders are "similarly situated" for the purposes of equal protection analysis, even if their crimes are completely dissimilar.

In People v. Walker, 75 P.3d 722 (Colo.App.2002), a division of this court rejected this argument. The division agreed with the logic of Friesen and further concluded that, because sex offenders and nonsexual offenders are subject to different parole laws, they are not similarly situated for purposes of parole. We agree with the division in Walker and similarly reject defendant's argument here. See also People v. Oglethorpe, 87 P.3d 129 (Colo.App. No. 02CA0347, June 19, 2003).

C.

Nonetheless, defendant further argues that the mandatory and discretionary parole laws violate equal protection because an offender committing the same nonsexual offense as he committed, but with an underlying factual basis involving unlawful sexual conduct, must only serve discretionary parole. See § 17-2-201(5)(a), (a.5), C.R.S.2002 (any person sentenced for the conviction of an offense involving unlawful sexual behavior or a nonsexual offense for which the factual basis involved an offense involving unlawful sexual behavior serves discretionary parole); see also People v. Pahlavan, 83 P.3d 1138 (Colo.App. No. 01CA1331, Apr. 24, 2003).

However, as Colorado courts have consistently held, equal protection of the laws requires that statutory classifications of crimes be based on differences that are real in fact and reasonably related to the general purposes of criminal legislation. People v. Marcy, 628 P.2d 69, 74 (Colo.1981).

Thus, in the criminal law context, equal protection problems arise only when the same or similar conduct is proseribed in two statutes, but different criminal sanctions apply. See People v. Young, 859 P.2d 814, 816 (Colo.1993); People v. Friesen, supra, 45 P.3d at 785.

Here, however, offenders convicted of crimes involving no allegations of sexual misconduct and offenders convicted of comparable nonsexual offenses in which there is an underlying factual basis of unlawful sexual behavior are not similarly situated because different behavior triggers the different parole requirements. The General Assembly has exercised its prerogative to differentiate offenses involving unlawful sexual behavior from other offenses in this way. See People v. Black, 915 P.2d 1257, 1261 (Colo.1996); People v. White, 656 P.2d 690 (Colo.1983); see also People v. McKnight, 626 P.2d 678, 683 (Colo.1981)(equal protection prohibits state from enacting statute which prescribes different punishments for the same acts committed under like circumstances by persons similarly situated).

Defendant here has cited no case in which classifications invalidated under equal protection analysis have involved different combinations of crimes. Nor has he alleged any facts to show that he and other nonsexual offenders are similarly situated to a sex offender who committed an unlike erime and received a criminal penalty deemed by the General Assembly to be appropriate for the nature of that crime. Therefore, we reject defendant's equal protection claims.

The order is affirmed.

Judge NIETO and Judge CARPARELLLI, concur.


author: Justice KIRSHBAUM.

text:
    XEROX CORPORATION, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS of ARAPAHOE COUNTY, acting as the Arapahoe County Board of Equalization; Edward G. Bosier, in his official capacity as the Arapahoe County Assessor; Board of County Commissioners of El Paso County, acting as the El Paso County Board of Equalization; John M. Bass, in his official capacity as the El Paso County Assessor; Board of County Commissioners of Boulder County, acting as the Boulder County Board of Equalization; and Cindy Domenico, in her official capacity as the Boulder County Assessor, Defendants-Appellees, and Mary E. Huddleston, Property Tax Administrator, Intervenor-Appellee.
    No. 02CA2026.
    Colorado Court of Appeals, Div. III.
    Oct. 9, 2003.
    Certiorari Denied April 12, 2004.

      Downey & Knickrehm, P.C., Norman H. Wright, Denver, Colorado, for Plaintiff-Appellant.
    Kathryn Schroeder, County Attorney, George D. Rosenberg, Assistant County Attorney, Littleton, Colorado, for Defendants, Appellees Board of County Commissioners of Arapahoe County, and Edward G. Bosier.
    Michael A. Lucas, County Attorney, John N. Franklin, Assistant County Attorney, Colorado Springs, Colorado, for Defendants-Ap-pellees Board of County Commissioners of El Paso County, and John M. Bass.
    H. Lawrence Hoyt, County Attorney, Robert R. Gunning, Assistant County Attorney, Boulder, Colorado, for Defendants-Appellees Board of County Commissioners of Boulder County, and Cindy Domenico.
    Ken Salazar, Attorney General, Larry A. Williams, First Assistant Attorney General, Denver, Colorado, for Intervenor-Appellee.
   Opinion by

Justice KIRSHBAUM.

Plaintiff, Xerox Corporation, appeals the summary judgment entered in favor of defendants, the Boards of Equalization and the County Assessors of Arapahoe, Boulder, and El Paso Counties, and intervenor, the Property Tax Administrator (the Administrator). We affirm.

L.

Plaintiff manufactures, leases, and sells various types of equipment, including copiers, printers, and reproduction devices and accessories. Because it owns the equipment it directly leases to consumers, under §§ 39-5-107 & 39-5108, C.R.S.2002, plaintiff must annually file personal property declaration schedules in all counties wherein it has taxable property.

In 1999, plaintiff filed such schedules with the defendants,. Plaintiff subsequently amended the schedules to reflect the costs incurred in manufacturing the equipment as the basis for reducing the assessed value of the equipment.

The assessors elected not to adopt plaintiff's proposed methodology. Indeed, they determined that the actual value of the equipment should be evaluated using comparable sales prices for like equipment, depreciated for age. The comparable sales price determinations were based on a memorandum issued by the Administrator to each of the assessors. The memo stated that the Colorado Division of Property Taxation (DPT) "did] not support [plaintiff's] actions to report 'manufacturer's cost' in leu of comparable sales prices."

Pursuant to § 89-5-122(2), C.R.S.2002, plaintiff objected to the assessors' methodology, and after the assessors denied plaintiff's requested relief, plaintiff appealed to the appropriate boards of equalization (BOEs), pursuant to § 39-8-106(1), C.R.S.2002. After conducting hearings, the BOEs issued resolutions denying plaintiff's appeals.

Thereafter, plaintiff petitioned for a consolidated judicial review of the BOE decisions. The Administrator intervened in the district court action.

Concluding that the parties differed in their interpretations of § 39-1-108(13), the district court granted summary judgment in favor of defendants. The court determined that the DPT"s interpretation did not conflict with the statute and thus was entitled to deference.

IL

On appeal, plaintiff contends that the district court erred in granting summary judgment in favor of defendants because § 89-1-103(13) mandates that assessors use manufacturing costs rather than comparable sale prices to determine actual value of personal property for tax purposes. We disagree.

The district court's entry of summary judgment required the interpretation of tax statutes and regulations. To that extent, our review is de novo. Stell v. Colo. Dep't of Health Care Policy & Fin., 78 P.Bd 1142 (Colo.App.2008).

The basic framework for fair and uniform ad valorem taxation of real and personal property is set forth in the Colorado Constitution, article X, section 3, and is dependent upon a calculation of the "actual value" of the property to be taxed. Such calculation must be determined under "general laws, which shall prescribe such methods and regulations as shall secure just and equalized valuations for assessments of all real and personal property." Colo. Const. art. X, § 8(1)(a); see Gilpin County Bd. of Equalization v. Russell, 941 P.2d 257, 260-61 (Colo.1997).

Actual value is synonymous with market value, see City & County of Denver v. Bd. of Assessment Appeals, 848 P.2d 355, 360 (Colo.1993), and is to be determined by one of three approaches: the cost approach, the market approach, or the income approach. Bd. of Assessment Appeals v. E.E. Sonnen-berg & Sons, Inc., 797 P.2d 27 (Colo.1990).

The Administrator is authorized to prepare and publish materials concerning methods of appraisal and to require their utilization by assessors in valuing and assessing taxable property. See § 39-2-109(1)(e), C.R.98.2002. These manuals are binding upon the assessors. See Euddleston v. Grand County Bd. of Equalization, 918 P.2d 15 (Colo.1996); Padre Resort, Inc. v. Jefferson County Bd. of Equalization, 30 P.3d 818 (Colo.

IIL.

Section 89-1-108(18) provides, in part:

(a) [I]n the consideration of the cost approach, market approach, and income approach to the appraisal of personal property by assessing officers, the cost approach shall establish the maximum value of property if all costs incurred in the acquisition and installation of such property are fully and completely disclosed by the property owner to the assessing officer.
(b) Therefore, in the assessment of taxable personal property, the assessing officer shall consider the value derived from the cost approach to be the maximum value of the property if the property owner has timely filed his declaration and the declaration contains all relevant information pertaining to the valuation of the property and, also includes, a full disclosure of all costs incurred in the acquisition and installation of all personal property owned by or in the possession of the taxpayer.

The parties disagree with respect to the meaning of the phrase "costs incurred in the acquisition and installation" of the property. Plaintiff contends that its cost of manufacturing property must form the basis for assessing the real value of the equipment under the statute. Defendants argue that the trial court properly gave deference to the DPT'"s statutory interpretation utilizing comparable sales prices as the starting point for application of the cost approach method here. We agree with defendants.

In interpreting a comprehensive legislative scheme such as the taxation statutes, courts must first examine the statutory language in an effort to give full effect to the legislative intent. Huddleston v. Grand County Bd. of Equalization, supra; Mamor Vail Condo. Ass'n v. Bd. of Equalization, 956 P.2d 654 (Colo.App.1998).

Where statutory language is clear and unambiguous, there is no need to resort to interpretive rules of statutory construction. Huddleston v. Grand County Bd. of Equalization, supra. However, judicial deference to administrative interpretation of a statute is appropriate when the legislative language is subject to different reasonable interpretations and the issue falls within an administrative agency's special expertise. See Huddleston v. Grand County Bd. of Equalization, supra, 918 P.2d at 17; Manor Vail Condo. Ass'n v. Bd. of Equalization, supra, 956 P.2d at 659; see also Colo. State Pers. Bd. v. Dep't of Corr., 988 P.2d 1147, 1150 (Colo.1999). If a statute is silent or ambiguous with respect to a specific issue, courts must consider whether the agency's regulation is based on a permissible construction of the statute. Smith v. Farmers Ins. Exch., 9 P.3d 885, 840 (Colo.2000).

A.

Here, the phrase "all costs incurred in the acquisition and installation" in § 39-1-103(13) is susceptible to more than one reasonable interpretation. See Manor Vail Condo. Ass'n v. Bd. of Equalization, supra, 956 P.2d at 659.

On its face, the statute is unclear as to what the word "acquisition" encompasses, and the statute does not elsewhere define the term. Webster's Third New International Dictionary 18-19 (1986) defines "acquisition" as "the act or action of acquiring," and "acquire" is defined as "to get as one's own; to come into possession or control or power of disposal of often by some uncertain or unspecified means." Similarly, Black's Law Dictionary 24 (7th ed.1999) defines "acquisition" as "the gaining of possession or control over something." Gaining possession or control of, for example, a copier could be accomplished either by purchasing it or by manufacturing it; thus, the statutory language is susceptible to more than one interpretation.

B.

The Administrator, through the Assessor's Reference Library (ARL ) manuals, has construed § 39-1-103(13) to authorize the use of comparable sales prices to serve as the basis for the cost approach method. According to the ARL, such cost approach method is based upon the principle that the value of a property equals the cost of acquiring an equally desirable substitute property. It is essentially an estimate of the cost of replacing the subject property with a new property that is equivalent in function and utility. See 5 Division of Property Taxation, Colorado Department of Local Affairs, Assessor's Reference Inbrary: Personal Property Valuation Manual § 38.4 (1989, rev.vol.2002); see also Bd. of Assessment Appeals v. E.E. Son-nenberg & Sons, Inc., supra, 797 P.2d at 30 n. 9 ("The cost approach involves estimating the cost of replacing the improvements to the property, less acerued depreciation.").

Cost approach estimates of value are based upon a replacement cost new (RCN) value, which is the cost to replace the item being appraised with another item equivalent in function and utility. The RCN does not contemplate an exact replica of the item being appraised, but rather a replacement that will yield the same use. See 5 ALR, supra, § 3.5.

In determining the RCN value, the ARL provides that the original installed costs should be declared on the declaration schedule. The ARL defines original installed cost as "the amount that was paid for the personal property when it was new," and includes "the purchase price of the item, freight to the point of use, applicable sales/use tax and any installation charges necessary to ready the property for use in the business location." Moreover, as defendants note, original installed costs are distinguished in the ARL from manufacturer's costs, which are defined separately as the "costs incurred by the manufacturer of the property to manufacture the item at the plant.” See 5 ARL, supra, § 3.5.

These various ARL provisions bolster the conclusion that the comparable sales price, rather than the manufacturer’s cost, is the appropriate starting point for the cost approach under § 39-1-103(13).

C.

Additionally, we determine that the DPT’s interpretation is reasonable because the equipment at issue here is not unique property. The ARL provides:

[I]n cases where the taxpayer has built a piece of personal property for which no comparables exist in the market and, therefore, for which no value in exchange can be determined, the taxpayer must estimate the cost of materials and labor used to build the personal property. In addition, estimates for freight to the point of use, installation charges, and sales/use tax must be added. This estimation procedure is to be used only when no comparable personal property exists in the market.

5 ARL, supra, § 3.11 (emphasis in original).

Here, a declaration of manufacturer’s costs might have been appropriate had this equipment constituted unique personal property. However, the parties stipulated that the equipment at issue was not unique personal property.

D.

Furthermore, the DPT’s interpretation comports with Colorado constitutional provisions requiring property to be assessed at its “actual value” and promoting the principle of “equalized value.” See Colo. Const, art. X, § 3; Gilpin County Bd. of Equalization v. Russell, supra, 941 P.2d at 260-61.

As noted earlier, actual value is synonymous with market value. See City & County of Denver v. Bd. of Assessment Appeals, supra, 848 P.2d at 360. Market value represents “what a willing buyer would pay a willing seller under normal economic conditions.” Bd. of Assessment Appeals v. Colo. Arlberg Club, 762 P.2d 146, 151 (Colo.l988)(quoting May Stores Shopping Ctrs., Inc. v. Shoemaker, 151 Colo. 100, 110, 376 P.2d 679, 683 (1962)); see also Padre Resort, Inc. v. Jefferson County Bd. of Equalization, supra, 30 P.3d at 815.

Here, the record reflects a significant difference between plaintiffs manufacturer’s costs and its retail selling prices. The application of the manufacturer’s cost under § 39-1-103(13) would result in values well below market value.

Moreover, as noted in the DPT memorandum, comparable sales prices establish “an equalized value upon which to apply depreciation for reported copiers.” Comparable sales prices, rather than manufacturer’s costs, better “secure just and equalized valuations for assessments.” See Colo. Const, art. X, § 3(l)(a); Gilpin County Bd. of Equalization v. Russell, supra, 941 P.2d at 261.

IV.

Defendants’ construction of the statute requiring comparable sales prices is consistent with the DPT’s interpretation of the statute. As the DPT’s interpretation is permissible and reasonable, we defer to it and hold that comparable sales prices are the appropriate basis to assess personal property under § 39-1-103(13). See Huddleston v. Grand County Bd. of Equalization, supra, 913 P.2d at 17; Manor Vail Condo. Ass’n v. Bd. of Equalization, supra, 956 P.2d at 659.

Accordingly, the trial court’s judgment is affirmed.

Judge MARQUEZ and Judge HUME *, 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 MARQUEZ.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Stanton HOSKAY, Defendant-Appellant.
    No. 02CA0394.
    Colorado Court of Appeals, Div. II.
    Oct. 9, 2003.
    Certiorari Denied April 12, 2004.

      Ken Salazar, Attorney General, Anthony J. Navarro, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Keyonyu X O'Connell, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge MARQUEZ.

Defendant, Stanton Hoskay, appeals the judgment of conviction entered upon jury verdicts finding him guilty of sexual assault of a physically helpless victim and public indecency. We affirm.

A counselor at a detoxification facility testified that he admitted defendant to the facility and directed him to the men's dormitory. Later that evening, the counselor conducted a bed check and looked into the dormitory room through a window in the hall. The counselor saw defendant, whose pants were pulled down, on top of a man (the victim) who appeared to be asleep. Although the counselor could not see defendant's genitals, it appeared to him that defendant was having anal intercourse with the victim. When the counselor entered the room, defendant was startled. However, the victim remained motionless.

The counselor escorted defendant to the main office and soon returned to the dormitory room. The counselor then woke the vice-tim and asked him whether he knew what had just occurred. The victim said that he did not.

The victim testified that he was dreaming about analingus being performed on him when he awoke to the sound of the counselor yelling at a man to get back in his own bed. The victim fell back to sleep until the counselor woke him a second time and told him what had happened. The victim testified that he experienced soreness in his anus for a couple of days after the incident.

I.

Defendant argues that the trial court abused its discretion by denying his chal- . lenge for cause to one of the prospective jurors. We are not persuaded.

A prospective juror should be disqualified for cause if he or she is biased and cannot render a fair and impartial verdict according to the laws and evidence presented at trial. Section 16-10-108(1)(j), Under § 16-10-103(1)(j), the trial court must sustain a challenge for cause to a prospective juror if the juror has a state of mind "evine-ing enmity or bias toward the defendant or the state"; however, no juror

shall be disqualified by reason of a previously formed or expressed opinion with reference to the guilt or innocence of the accused, if the court is satisfied, from the examination of the juror or from other evidence, that he will render an impartial verdiet according to the law and the evidence submitted to the jury at the trial.

A trial court's ruling denying a challenge for cause may only be reversed on appeal if the trial court abused its discretion. People v. Veechiqrellt-MclLaughlin, 984 P.2d 72, T5-76 (Colo.1999).

Here, the challenged prospective juror initially stated that she had a religious objection to homosexuality and admitted that if she were in defendant's position, she would be concerned about having a person such as herself on the jury. The prospective juror also stated that she hoped she would not be selected because of the nature of the case. The prospective juror conceded that she did not know how her feelings about homosexuality would affect her judgment.

However, the prospective juror also stated that she thought she could judge the case based on the evidence and afford defendant the presumption of innocence irrespective of his sexual orientation. In addition, the prospective juror told the court that she would "hear the evidence and decide whether or not he had committed an illegal act rather than judge him upon his ... tendencies." The prospective juror made clear that she would "judge solely upon the evidence that's presented whether he committed the act or whether he has not committed the act" and "would never send someone [to prison] for something [she] did not feel ... they committed just based upon some feelings that [she had] about certain subjects."

Based on this record, we cannot say that the trial court abused its discretion by relying on the prospective juror's assurances that she could be impartial and render a fair verdict. Accordingly, we conclude the trial court acted within its discretion in denying defendant's challenge for cause.

IL

Defendant also argues that the trial court abused its discretion by allowing the counselor to testify that the sexual encounter appeared to be nonconsensual. We disagree.

CRE 701 provides, in relevant part, as follows:

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness [and] (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue....

A lay witness may state an opinion about another person's motivation or intent if the witness had sufficient opportunity to observe the person and to draw a rational conclusion about the person's state of mind. Summary characterizations and impressions as to what transpired can be of significant assistance to a fact finder. People v. Jones, 907 P.2d 667, 669 (Colo.App.1995).

A reviewing court must not disturb a trial court's admission of evidence pursuant to CRE 701 absent an abuse of discretion. Robinson v. People, 927 P.2d 381, 384 (Colo.1996).

Here, the trial court found that the counselor's opinion concerning whether the sexual encounter was consensual was controlled by CRE 701 and that his testimony was based on his own observations. Accordingly, the court overruled defendant's objection and permitted the counselor to testify to his opinion of the victim's unconscious state and what appeared to him to be a sexual assault.

We conclude the record supports the trial court's findings. See People v. Jones, supra (witness's opinion testimony as to whether robbery was occurring should have been admitted). Accordingly, we perceive no abuse of discretion in the court's ruling.

To the extent defendant is also asserting that the counselor's testimony was improper because it included an opinion as to an ultimate issue, we reject this claim. See CRE 704 ("[tlestimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact"); People v. Brewer, 720 P.2d 588, 587-88 (Colo. App.1985).

TH.

Nor do we agree with defendant's contention that the trial court erred by refusing to instruct the jury that in order to commit the offense of public indecency, a person must know that he is in a public place.

As relevant here, the offense of public indecency is defined as follows:

Any person who performs any of the following in a public place or where the conduct may reasonably be expected to be viewed by members of the public commits public indecency:
(a) An act of sexual intercourse; or
(b) An act of deviate sexual intercourse; or
(d) A lewd fondling or caress of the body of another person.

Section 18-7-801(1), C.R.98.2002.

" 'Public place' means a place to which the public or a substantial number of the public has access, and includes but is not limited to highways, transportation facilities, schools, places of amusement, parks, playgrounds, and the common areas of public and private buildings and facilities." Section 18-1-901(8)(n), C.R.8.2002.

Defendant tendered an instruction that tracked the language of § 18-7-801(1), but also stated that he could not be found guilty unless the jury determined that he knew he was in a public place or a place where his conduct may reasonably have been expected to be viewed by members of the public. The trial court refused the instruction, instead submitting instructions limited to the language of § 18-7-301(1) and $ 18-1-901(8)(n). In addition, the court instructed the jury that the offense of public indecency is a strict liability crime.

In interpreting a statute, we must give effect to the intent of the General Assembly, which is vested with the power to define eriminal conduct and to establish the legal components of criminal Hability. Generally, to subject a person to criminal Hability, there must be concurrence of the actus reus, an unlawful act, and the mens rea, a culpable mental state. Gorman v. People, 19 P.3d 662, 665 (Colo.2000).

Legislative silence on the element of intent in a criminal statute is not to be construed as an indication that no culpable mental state is required. A requisite mental state may be inferred from the statute. (Gor-man v. People, supra, 19 P.3d at 665.

Although no culpable mental state is expressly designated in a statute defining an offense, a culpable mental state may nevertheless be required for the commission of that offense, or with respect to some or all of the material elements thereof, if the proscribed conduct necessarily involves such a culpable mental state.

Section 18-1-508(2), C.R.S8.2002.

However, not all offenses have a culpable mental state:

The minimum requirement for eriminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which he is physically capable of performing. If that conduct is all that is required for commission of a particular offense, or if an offense or some material element thereof does not require a culpable mental state on the part of the actor, the offense is one of "strict liability."

Section 18-1-502, C.R.8.2002.

Examples of strict lability offenses are speeding and driving under the influence, People v. Ellison, 14 P.3d 1084 (Colo.2000), and vehicular homicide or assault while intoxicated. People v. Garner, 781 P.2d 87 (Colo.1989); People v. Lucero, 985 P.2d 87 (Colo.App.1999).

Here, the plain language of the public indecency statute reflects the General Assembly's intent to make the offense a strict liability crime without a culpable mental state. The General Assembly employed an objective standard and made the statute applicable to the performance of sexual acts "in a public place or where the conduct may reasonably be expected to be viewed by members of the public." Section 18-7-801(1) (emphasis added). This objective standard depends not on what a particular defendant actually knew, but on what a reasonable person in the defendant's position should have known. Therefore, superimposing a requirement that an offender must know that he or she is in a "public place" within the meaning of § 18-1-901(8)(n) would frustrate the clear intent of the General Assembly.

Accordingly, because the trial court's instructions accurately stated the law, we find no error in the court's rejection of defendant's tendered instruction.

IV.

We also are not persuaded by defendant's contention that the trial court erred by failing to instruct the jurors that they should not be influenced by gender bias or prejudice.

Section 18-3408, C.R.S.2002, specifies that the "jury shall be instructed not to allow gender bias or any kind of prejudice based upon gender to influence the decision of the jury.”

Where, as here, the trial court neglects to submit such an instruction and the defendant does not tender such an instruction or object to its omission, the plain error standard of review applies. People v. Johnson, 870 P.2d 571, 572 (Colo.App.1993

The standard for plain error is whether an appellate court, after reviewing the entire record, can say with fair assurance that the error so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction. People v. Johnson, supra.

Here, defendant contends that he was prejudiced by the absence of a gender bias instruction because this case involved a homosexual act and his theory of defense was consent. We do not find this argument per-suagive because it erroneously equates gender bias with bias against homosexuals, and the record provides no reason to believe the jury would have confused these two concepts. Moreover, defendant's concern was adequately addressed by the trial court's instruction that the jury not allow prejudice to influence its decision.

Accordingly, we conclude the omission of a gender bias instruction did not rise to the level of plain error. See People v. Johnson, supra (holding that the absence of a gender bias instruction did not constitute plain error based, in part, on the fact that the jury had been instructed not to allow prejudice to influence its decision).

Further, even if we were persuaded by defendant's claim that the absence of a gender bias instruction should be measured by a constitutional standard, we would nevertheless conclude that this omission was not a structural error and does not require reversal because it was harmless beyond a reasonable doubt. See Griego v. People, 19 P.3d 1 (Colo.2001); People v. Johnson, 74 P.3d 349 (Colo.App.2002); People v. Johnson, supra, 870 P.2d at 572.

V.

We also reject defendant's contention that the evidence was insufficient to support the jury's verdict finding him guilty of sexual assault of a physically helpless victim. Specifically, defendant asserts the evidence did not establish that the victim suffered sexual penetration or that he was physically helpless.

"Any actor who knowingly inflicts ... sexual penetration on a victim commits sexual assault if ... [t]he victim is physically helpless and the actor knows the victim is physically helpless and the victim has not consented." Section 18-3-402(1)(b), C.R.8.2002 (formerly § 18-3-402(1)(e)). " 'Physically helpless' means unconscious, asleep, or otherwise unable to indicate willingness to act." Section 18-3-401(8), C.R.S.2002. And, as relevant here, " 'Sexual penetration' means . anal intercourse. Emission need not be proved as an element of any sexual penetration. Any penetration, however slight, is sufficient to complete the crime." Section 18-3-401(6), C.R.8.2002.

When assessing the sufficiency of the evidence in support of a finding of guilt, a reviewing court must determine whether any rational trier of fact might accept the evidence, taken as a whole and in the light most favorable to the prosecution, as substantial and sufficient to support a finding of the accused's guilt beyond a reasonable doubt. We must give the prosecution the benefit of every reasonable inference that might fairly be drawn from the evidence. Kogan v. People, 756 P.2d 945, 950 (Colo.1988).

Viewing the trial evidence according to the foregoing standards, we conclude the victim's testimony describing the soreness in his anus, the counselor's testimony that both defendant and victim were naked from the waist down, and defendant's statement that "it was consensual" were sufficient cireum-stantial evidence to prove that penetration occurred.

We further conclude that the testimony of the victim and the counselor was sufficient to prove beyond a reasonable doubt that the victim was asleep, and therefore physically helpless, during the assault.

VI.

Finally, defendant argues that the evidence was insufficient to support the jury's verdict finding him guilty of public indecency because the area where the offense occurred was neither a "public place" nor a "place where the conduct may reasonably have been expected to be viewed by members of the public." We disagree.

The evidence established that the dormitory room of the detoxification facility was open to any man admitted to the facility, as well as to the staff. This evidence was sufficient to support the jury's finding that the room was a common area of a private facility and also a place where sexual conduct may reasonably have been expected to be viewed by members of the public. See State v. Black, 260 Ark. 864, 545 SW.2d 617 (1977)("drunk tank" of city jail, wherein jailer observed defendant allegedly engaging in oral sex with another prisoner, was a "public place" within the meaning of the public sexual indecency statute).

The judgment is affirmed.

Judge ROTHENBERG and Judge GRAHAM concur.


author: Judge HUME.

text:
    Wayne S. STILLMAN, Plaintiff-Appellant, v. STATE of Colorado and Bill Owens, Governor, Defendants-Appellees.
    No. 02CA1627.
    Colorado Court of Appeals, Div. A.
    Oct. 23, 2003.
    Certiorari Denied March 22, 2004.

      Wayne S. Stillman, Pro Se.
    Ken Salazar, Attorney General, Anne Bau-dino Holton, Assistant Attorney General, Denver, Colorado, for Defendants-Appellees.
   Opinion by

Judge HUME.

Wayne S. Stillman (father) appeals from the order dismissing his complaint for declaratory and injunctive relief. We affirm.

Father is a divorced parent of two children. Upon dissolution of his marriage, he was ordered to pay $837 per month for the support of the children pursuant to the child support guidelines set forth in § 14-10-115, C.R.S.2002.

Father sought a declaratory judgment concerning the constitutionality of § 14-10-115. He alleged that the statute violated his rights to equal protection, his right to substantive and procedural due process, and his right of privacy and that enforcement of the child support order was an unconstitutional taking of property and an ongoing threat of imprisonment for debt. He sought a permanent injunction preventing the enforcement of the child support obligation.

The trial court made findings on each argument and dismissed the complaint. Father asserts, however, that the court did not adequately address his arguments. We find no error.

Statutes are presumed to be constitutional, and one challenging the validity of a statute has the burden of proving it unconstitutional beyond a reasonable doubt. Watso v. Colo. Dep't of Soc. Servs., 841 P.2d 299 (Colo.1992). When the underlying facts are undisputed, the trial court may decide the issues as a matter of law. Medina v. State, 35 P.3d 448 (Colo.2001).

Although parents have a right to privacy in matters related to child-rearing and family relationships, this right is not absolute, and the family is subject to regulation in the public interest. People v. Shepard, 983 P.2d 1 (Colo.1999). The state has a public interest in mitigating the potential harm to children caused by the dissolution of marriage. Section 14-10-104.5, C.R.8.2002. Thus, a parent has no privacy interest in the process by which child support obligations are determined because support levels are not purely private determinations, but serve a public function and are subject to court approval. See Ga. Dep't of Human Res. v. Sweat, 276 Ga. 627, 580 S.E.2d 206 (2008); cf Linda D. v. Fritz C., 88 Wash.App. 288, 687 P.2d 2283 (1984)(right to privacy does not encompass right of parent to avoid child support obligation because mother did not successfully use contraception).

Furthermore, the child support guidelines do not infringe upon a fundamental right. See Ga. Dep't of Human Res. v. Sweat, supra. Nor do they discriminate against a suspect class or significantly interfere with a fundamental right. See In re Marriage of McGinley, 172 Or.App. 717, 19 P.3d 954 (2001). Therefore, the rational basis test applies to the evaluation of father's constitutional challenges. See Ga. Dep't of Human Res. v. Sweat, supra; see also P.O.P.S. v. Gardner, 998 F.2d 764 (9th Cir. 1998); cf Zablocki v. Redhail, 484 U.S. 374, 98 S.Ct. 678, 54 LEd.2d 618 (1978)(state statute forbidding noneustodial parent with child support obligation from marrying without obtaining court permission is subject to strict scrutiny because of the direct interference with family relationships). We agree with the trial court that the state has a legitimate interest in requiring divorced or separated parents to provide child support based on the parties' combined gross incomes.

We also agree with the trial court that father has not shown that he is similarly situated to parents who are married and have not divorced or separated. Nevertheless, even if we accept the argument that a divorced or separated parent is treated disparately by the imposition of a child support obligation, we conclude that the statutory distinction made by § 14-10-115 does not violate such parent's right to equal protection. A distinction between sets of parents based on marital status is rationally related to the legitimate state interest to insure that children of divorced or separated parents receive support despite the divorcee or separation. In re Marriage of Crocker, 157 Or. App. 651, 971 P.2d 469 (1998), affd, 382 Or. 42, 22 P.3d 759 (2001). As stated in Crocker, the legislature could rationally assume that many divorced or separated parents will no longer be able to work together to make responsible decisions about how to support their children.

Additionally, we conclude that, because it approximates the amount of parental income that the child would have received in an intact family, application of the guidelines is not arbitrary, capricious, fundamentally unfair, or coercive. See Report of the Colorado Commission on Child Support (1985); of. In re Marriage of Nimmo, 891 P.2d 1002 (Colo.1995){stepparent's income and support of his family unit are not relevant to child support determination because that income and support would not be available if the parents and children were living in an intact household).

Thus, the imposition of a certain amount of child support by application of the child support guidelines does not infringe upon father's constitutional rights. Nor does it result in pecuniary gain to the state because it may result in receipt of federal funds or prevent a custodial parent from seeking state welfare benefits.

The trial court also correctly found that father did not establish a constitutionally protected taking. See Ga. Dept of Human Res. v. Sweat, supra (child support guidelines merely ensure that noneustodial parents help pay the costs of supporting their children); of. Wellman v. Dep't of Human Servs., 574 A.2d 879 (Me.1990){concept of a taking does not apply to scheme requiring unwed father to reimburse state for overpayment to mother of aid to families with dependent children).

Finally, the trial court correctly determined that a finding of contempt for violation of a court order does not subject a parent to imprisonment for failure to pay a debt. See In re Marriage of Nussbeck, 974 P.2d 498 (Colo.1999). As the trial court found, § 14-10-115 provides the opportunity for an evidentiary hearing prior to the imposition of a child support order, and so the requirement for procedural due process is satisfied.

Accordingly, father's arguments are not persuasive, and therefore, the trial court properly dismissed his complaint under C.R.C.P. 12(b)(B).

The order 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 KAPELKE. Judge WEBB

text:
    Gillian P. HARTMAN, Plaintiff-Appellee, v. COMMUNITY RESPONSIBILITY CENTER, INC., Defendant-Appellant.
    No. 02CA1308.
    Colorado Court of Appeals, Div. IV.
    Nov. 6, 2003.
    Certiorari Denied March 22, 2004.

      Holland & Hart LLP, Christopher H. Toll, Megan C. Bertron, Denver, Colorado, for Plaintiff-Appellee.
    Fowler, Schimberg & Flanagan, P.C., Daniel M. Fowler, Katherine Taylor Eubank, Jessica J. Eklund, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge KAPELKE.

Defendant, Community Responsibility Center, Inc. (CRC), appeals the judgment entered upon a jury verdict in favor of plaintiff, Gillian P. Hartman, a former employee, on plaintiff's claim for damages under the Colorado Wage Act and on CRC's counterclaims for negligence and breach of fiduciary duty. We affirm.

Hartman was employed for several years by CRC, a nonprofit corporation. As the director of finance and administration, she reported to the executive director.

In 1998, the entire board of directors of CRC resigned following an internal lability audit. The new board determined that the executive director was underpaid and therefore decided to increase his compensation substantially and also to grant him back pay. The executive director, in turn, increased the compensation of Hartman and another employee and authorized back pay for them as well. Under CRC's bylaws, the executive director had the authority to set the rate of compensation for all subordinate officers and employees, subject to any limitations imposed by the board.

In 2000, CRC terminated the executive director's employment. Hartman resigned shortly thereafter. In her resignation letter, she requested that CRC deposit into her bank account her final paycheck for her last four days of work and her accrued vacation pay. CRC refused to make the requested payments. After unsuccessfully pursuing a formal wage demand claim through the Colorado Department of Labor and Employment, Hartman filed this action for unpaid wages and acerued vacation pay, penalties, and attorney fees. CRC filed counterclaims, including claims for negligence and breach of fiduciary duty, based on Hartman and her coemployee's having received the increased compensation and back pay.

At the close of CRC's case-in-chief, the court directed a verdict in favor of Hartman on liability as to her Wage Act claim. The jury awarded her damages for her unpaid wages and accrued vacation pay and also found for her on CRC's counterclaims. The judgment entered by the trial court included a statutory penalty in the amount of one-half of the jury's award, pursuant to former § 8-4-104(8), Colo. Sess. Laws 1986, ch. 65 at 505 {now codified with amendments at § 8-4-109(8)).

I. Exclusion of Expert Testimony

CRC first contends that the trial court abused its discretion by ruling, pursuant to Hartman's motion in limine, that CRC's expert witness would not be allowed to testify concerning the reasonableness of Hartman's conduct. Specifically, CRC argues that its expert witness, an accountant, should have been permitted to testify that Hartman knew or should have known that the compensation increases were imprudent, that she had a duty to report the compensation increases and their detrimental effect to the board, and that she breached that duty. We perceive no basis for reversal.

CRE 702 provides that an expert may give opinion testimony where scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. Trial courts are granted broad discretion in determining the admissibility of expert testimony under CRE 702, and the exercise of that discretion will not be overturned unless manifestly erroneous. Masters v. People, 58 P.3d 979, 988 (Colo.2002).

Generally, expert opinion testimony is not inadmissible merely because it touches on an ultimate issue of fact. However, an expert may not usurp the function of the court by expressing an opinion regarding the applicable law or legal standards. Quintana v. City of Westminster, 8 P.8d 527 (Colo.App.2000).

The nature and scope of the duties owed by a fiduciary are issues of law to be determined by the court. Command Communications, Inc. v. Frits Cos., 36 P.8d 182 (Colo.App.2001)

Here, in partly granting Hartman's motion in limine, the trial court recognized that the seope of the fiduciary duty of the officers of a nonprofit corporation is defined by case law and statute. See § 7-128-401, C.R.S.2008 (requiring that an officer act in good faith, with the care an ordinarily prudent person in a like position would exercise under similar cireumstances, and in a manner the officer reasonably believes to be in the best interest of the nonprofit corporation); Van Schaack Holdings, Ltd. v. Van Schaack, 867 P.2d 892 (Colo.1994) (officer's fiduciary duty determined by looking to legal standards, including prior case law).

In discussing the distinction between claims for breach of fiduciary duty and those for malpractice, the trial court quoted from Moses v. Diocese of Colorado, 868 P.2d 810, 321 n. 18 (Colo.1993):

The fundamental difference between the two causes of action is the former [for fiduciary breach] is a breach of trust and does not require a professional relationship or a professional standard of care, while the latter [for malpractice] is an action for negligence based on a professional relationship and a professional standard of care.

In contrast to an ordinary negligence claim or a breach of fiduciary duty claim, a claim for professional negligence involves standards of care that are generally not within the common knowledge and experience of ordinary persons. Therefore, the standard of care must be established by expert witnesses in professional liability cases.

Here, in exeluding the proffered expert witness testimony, the court concluded that it went to the seope of Hartman's duty as an officer, which was a matter of law.

We agree with the trial court that CRC's breach of loyalty claim was not governed by standards of care of a particular profession and that the jury would be able to determine whether a breach occurred based on the court's instructions. Under these civreum-stances, the court did not abuse its broad discretion in excluding the testimony, even though we recognize that the court may have been incorrect in viewing the proffered testimony as inadmissible as a matter of law, rather than as a matter of the court's diseretion.

II. Admission of Evidence

CRC next contends that the trial court abused its discretion by allowing Hartman to introduce evidence regarding CRC's settlement with the former executive director and regarding the financial condition of the corporation and certain financial decisions made by management. We disagree.

A.

First, we find no abuse of discretion in the trial court's admitting evidence of the settlement agreement reached by CRC with its former executive director.

Pursuant to CRE 408, evidence of a settlement agreement is not admissible to prove liability for the settled claims, but may be admissible if offered for other purposes, including to prove bias or prejudice of a witness. While CRE 408 enumerates certain exceptions to the general rule excluding evidence of settlements, the list is not exclusive. See Genova v. Longs Peak Emergency Physicians, PC., 72 P.Bd 454, 464 (Colo.App.2003).

Here, the executive director testified that he was constrained in his testimony by the agreement, which prohibited disclosure of its terms to Hartman. Accordingly, the settlement agreement was admissible to explain the context of the testimony given by the executive director.

In addition, the evidence was relevant to rebut CRC's own evidence that its losses for the year were caused by the allegedly excessive compensation paid to Hartman and her coemployee. For accounting purposes, CRC had treated the sizable settlement payment to the executive director as an expense in the same year Hartman and her coemployee received their payments.

Fed.R.Evid. 408, the counterpart of CRE 408, "does not require exclusion of evidence regarding a settlement if the evidence is offered for some purpose other than proving "liability for or invalidity of the claim or its amount.'" Jack B. Weinstein & Margaret A. Berger, 2 Weinstein's Federal Evidence § 408.08, at 408-27 (2d ed.2003). We conclude that principle should apply with respect to CRE 408, as well. See State v. Buckley Powder Co., 945 P.2d 841 (Colo.1997)Ginter-pretations of federal rules are persuasive authority as to the Colorado rule counterparts).

Here, the settlement evidence was not offered for those prohibited purposes. Accordingly, we conclude that the trial court did not abuse its discretion.

B.

The trial court also did not abuse its discretion in permitting evidence of CRC's finances and certain corporate financial decisions made during Hartman's employment and following her resignation.

CRC initially asserts that Hartman should not have been permitted to introduce evidence that when her compensation and that of her coworker were increased, CRC had $1.8 million in reserves in the bank, had decided for the first time to compensate board members, had placed an attorney on monthly retainer, and had significantly increased the executive director's compensation and given him a large award of back pay. The trial court ruled that this evidence was relevant to CRC's contention that Hartman should have known that the pay increases would have a negative impact on the company's finances. The evidence also served to corroborate Hartman's testimony that her own pay increase and that of her coworker appeared reasonable in light of the overall financial position of the company. We find no abuse of discretion in the court's ruling.

CRC also maintains that the court abused its discretion in admitting evidence that CRC spent $315,000 on a rental property in Florida approximately seven months after Hartman left employment with the nonprofit corporation.

The trial court found this evidence relevant to show whether Hartman's actions had a significant adverse impact on CRC's financial condition. Further, given CRC's own evi-denee that its decision to purchase the rental property was one of its best investment decisions, the admission of evidence regarding the acquisition did not affect a substantial right of CRC. Again, we perceive no abuse of discretion under the cireumstances.

III. Directed Verdict

Finally, CRC contends that the trial court erred by directing a liability verdict on Hartman's Wage Act claim. We disagree.

The purpose of the Wage Act is to assure the timely payment of wages and to afford adequate judicial relief when wages are not paid. The Act is to be liberally construed to carry out that purpose. Montemayor v. Jacor Communications, Inc., 64 P.8d 916, 928 (Colo.App.2002); Cusimano v. Metro Auto, Inc., 860 P.2d 582, 534 (Colo.App.1992).

Under the Wage Act, when an employment relationship terminates due to the resignation of an employee, "wages or compensation shall become due and payable upon the next regular payday." Section 8-4-109(1)(b), C.R.S.2003 (formerly codified at § 8-4-104(1)(b)); Hartman v. Freedman, 197 Colo. 275, 591 P.2d 1318 (1979).

Employers are not required to pay wages "not yet fully earned under the compensation agreement between the employee and employer." Section 8-4-109(2), C.R.S. 2008 (formerly codified at § 8-4-104(2)). Further, under former § 8-4-104(2), as applicable here, employers were permitted to "set off any lawful charges or indebtedness owing by the employee to the employer." Colo. Sess. Laws 1967, ch. 898, § 80-8-4(2) at 860. "Lawful charges or indebtedness" was narrowly defined by statute to include deductions such as those for taxes and for loans, advances, goods or services, and equipment or property that the employer provided the employee pursuant to a written agreement. Colo. Sess. Laws 1998, ch. 192, § 8-4-101(7.5)(b)-(c) at 868 (repealed Colo. Sess. Laws 2008, ch. 286 at 1851). The Wage Act provides that an employer may not withhold an employee's wages except under those narrow cireumstances specified in the act.

Thus, unless the exceptions under the Wage Act apply, an employer who believes an employee has violated a duty must nevertheless pay the compensation on the next payday. The employer may thereafter bring an action against the employee for any losses allegedly caused. However, the employer is not excused from timely payment of the earned wages in the first instance. Porter v. Castle Rock Ford Lincoln Mercury, Inc., 895 P.2d 1146 (Colo.App.1995). Similarly, if the dispute involves the amount of wages owing, the employer must pay the undisputed portion. Rohr v. Ted Neiters Motor Co., 758 P.2d 186 (Colo.App.1988).

Relying on Jet Courier Service, Inc. v. Mulei, TiL P.2d 486 (Colo.1989), CRC maintains that it was permitted to withhold Hartman's compensation based on the alleged breach of fiduciary duty or, in the alternative, that it had a good faith legal justification for withholding the compensation pending resolution of the claims.

In Jet Courier, the court recognized that an employee who breaches the duty of loyalty is not entitled to compensation for the period of disloyalty. Concluding that the trial court had applied unduly narrow legal standards in determining what actions constituted a breach of the employee's loyalty duty, the supreme court remanded for a new trial. As to the issue of entitlement to a statutory penalty under the former § 8-4-104, the supreme court indicated that the trial court should determine on remand whether the existence of the claims for breach of duty of loyalty by the employee constituted a good faith legal justification for the employer's refusal to pay any wages or compensation to the employee upon termination. Notably, Justice Mullarkey indicated in her concurring opinion that under the definition of "lawful charges and indebtedness" in the former § 8-4-101(7.5), which was enacted after the employer's withholding of wages in that case, an employer would not be allowed to withhold an employee's paycheck or set off alleged damages based on a claim of a breach of loyalty. Jet Courier Serv., Inc. v. Mule, supra, 771 P.2d at 505 (Mullarkey, J., concurring).

The definition of "lawful charges and indebtedness" in the version of § 8-4-101(7.5) applicable here is even more restrictive than that discussed by Justice Mullarkey in Jet Courier. The definition would not encompass an employer's assertion of a claim of breach of loyalty. Thus, we conclude that the trial court correctly determined that CRC improperly refused to pay Hartman her unpaid wages and acerued vacation pay at the time of her resignation.

CRC also argues that it was not liable for the statutory penalty because the allegations in its counterclaims provided a "good faith legal justification" for refusing to pay Hartman's final wages and accrued vacation pay. We reject the argument.

Under the applicable version of § 8-4-104(3), an employer who refused to pay an employee wages without a good faith legal justification was liable to the employee for a penalty of "the greater of an amount equal to fifty percent [of the wages owed] or an amount equal to the amount of the wages payable per day to such employee not to exceed ten days."

The phrase "without good faith legal justification" means willfully withheld without good cause. Beasley v. Mincomp Corp., 683 P.2d 370 (Colo.App.1984). Willful withholding does not require a showing of malice or other motive, but merely requires a showing that the compensation was withheld without good cause. Porter v. Castle Rock Ford Lincoln Mercury, Inc., supra.

In Porter, the employer argued that because it mistakenly, but in good faith, believed it had the legal right to retain the plaintiff's wages as a setoff for damages to its truck, those wages were not willfully withheld. The Porter division rejected the argument and found record support for the trial court's determination that "although [the employer] may have had a good faith justification 'in its own mind," there was no lawful charge or indebtedness' within the provisions of [the former] § 8-4-101(7.5) providing a good faith legal justification for withholding [the employee's] paycheck." Porter, supra, 895 P.2d at 1148.

Here, the trial court determined, as a matter of law, that a claim of breach of fiduciary duty is not a good faith legal justification for not timely paying an employee's final wages under the Wage Act. Given that CRC's asserted reason for withholding payment of Hartman's wages here was not within the listed exceptions under the applicable version of the Wage Act, we agree with the trial court. Therefore, the court did not err in entering a directed verdict and taking the issue from the jury.

The judgment is affirmed.

Judge VOGT concurs.

Judge WEBB concurs in part and dissents in part.

Judge WEBB

concurring in part and dissenting in part.

In my view, defendant, Community Responsibility Center, Inc. (CRC), presented sufficient evidence of breach of fiduciary duty from which a reasonable jury could conclude that CRC had a "good faith legal justification" for refusing to pay Hartman's final four days' wages and accrued but unused vaca tion. Hence, I respectfully dissent from the majority's conclusion in Section III that CRC's liability for the statutory penalty under the former § 8-4-104(8) need not have been submitted to the jury.

A directed verdict is proper only in the clearest of cases, after the court has considered the evidence and all reasonable inferences therefrom in favor of the nonmoving party. See, eg., Romero v. Denver & Rio Grande W. Ry., 183 Colo. 32, 514 P.2d 626 (1973); Evans v. Webster, 882 P.2d 951 (Colo.App.1991).

An employee who breaches his fiduciary duty is not entitled to compensation for the period of disloyalty. Jet Courier Serv., Inc. v. Mulei, 771 P.2d 486 (Colo.1989).

The majority upholds the directed verdict on Hartman's Wage Act claim by concluding that an employee's breach of fiduciary duty does not constitute "lawful charges and indebtedness" for a setoff under the former § 8-4-101(7.5). I perceive the issue differently.

Under the former $ 8-4-104(2), the statutory definition of "lawful charges and indebtedness" limited an employer's power to make a setoff against wages otherwise payable when the employment relationship ends. That section permitted an employer to "set off any lawful charges or indebtedness owing by the employee to the employer." I agree with the majority that damages from an employee's breach of fiduciary duty are not "lawful charges and indebtedness."

Here, however, in addition to asserting a setoff against the Wage Act claim based on damages caused by Hartman's alleged breach of fiduciary duty, CRC contends that, because of Hartman's disloyalty, the wages and vacation pay she seeks did not acerue. See Jet Courier, supra. Hence, under CRC's theory, wages were not payable because they had not been earned under the former § 8-4-104(1)(b).

Unlike the majority, I read the concurrence in Jet Courier, supra, as limited to setoffs, which "are disfavored because of the inherent economic inequity between the employer and employee." 771 P.2d at 505 (Mullarkey, J., concurring). Thus, for me, it does not preclude the distinction between setoff and nonacerual that I perceive as pivotal here.

The trial court concluded that CRC had presented sufficient evidence for the jury to consider the breach of fiduciary duty counterclaim. Hence, I believe that Hartman's Wage Act claim should likewise have been submitted to the jury, because wages do not accrue during the time when an employee is in breach of fiduciary duty. This error is | harmless since the jury, having found against CRC on its counterclaim for breach of fidu-clary duty, would necessarily have resolved the Wage Act claim in Hartman's favor.

However, I do not draw the same conclusion concerning failure to submit the penalty to the jury. Under the former $ 8-4-104(3), an employer avoided the penalty by showing a "good faith legal justification" for refusing to pay wages due upon termination of the employment relationship. A determination that wages were due does not preclude the existence of a good faith legal justification for having withheld payment based on the same evidence. See Rohr v. Ted Neiters Motor Co., 758 P.2d 186 (Colo.App.1988). Were wage liability and penalty liability coterminous, then the "good faith legal justification" provision would be without purpose. Porter v. Castle Rock Ford Lincoln Mercury, Inc., 895 P.2d 1146 (Colo.App.1995), dealt only with the employer's mere belief that withholding payment was justified, not with the sufficiency of the evidence needed to support that belief.

In contrast, here evidence concerning Hartman's alleged breach of fiduciary duty could still have sufficed to establish a good faith legal justification, even if that evidence did not support refusing to pay the wages at issue. Hence, I disagree that merely because the jury rejected CRC's breach of fiduciary duty counterclaim, the jury would nee-essarily have also rejected CRC's assertion of "good faith legal justification" and awarded Hartman the statutory penalty.

Accordingly, I would reverse and remand for a new trial on the question of CRC's liability for the statutory penalty.