source: Caselaw Access Project

author: Justice BENDER

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Petitioner/Cross-Respondent, v. Adriel BORGHESI, Respondent/Cross-Petitioner.
    No. 01SC479.
    Supreme Court of Colorado, En Banc.
    March 24, 2003.
    As Modified on Denial of Rehearing April 14, 2003.

      Ken Salazar, Attorney General, Anthony J. Navarro, Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, Colorado, Attorneys for Petitioner/Cross-Respondent.
    David S. Kaplan, Colorado State Public Defender, Martin Gerra, Deputy State Public Defender, Denver, Colorado, Attorneys for Respondent/Cross-Petitioner.
   Justice BENDER

delivered the Opinion of the Court.

I. Introduction

Defendant Adriel Borghesi was convicted of three counts of aggravated robbery. Two of the convictions were based upon an incident involving the taking of a store's property from two employees. The third conviction was based upon a separate and later incident involving a taking of the same store's property from a single employee. In People v. Borghesi, 40 P.3d 15 (Colo.App.2001), the court of appeals vacated one of the convictions arising from the first incident and held that the two charges were multiplicitous primarily because consecutive sentences such as those imposed for aggravated robbery convictions are mandatory, thus making disproportionate sentencing a distinct possibility. On a second, unrelated issue, the court of appeals held that the admission of out-of-court testimony based upon a photographic array did not violate the defendant's due process right to a fair trial because the array was not impermissibly suggestive.

We now reverse on the issue of the defendant's multiple sentences. We hold that the defendant's judgments of conviction were not multiplicitous because robbery and aggravated robbery are crimes intended to protect persons who control property taken by force and intimidation. Thus, a robber may be convicted of more than one count of robbery by taking commonly-owned property from more than one person. On the issue of the admissibility of out-of-court and in-court identification testimony, we hold that because the differences between the defendant's photograph and others in the array do not relate to a feature witnesses used to identify him, the array was not impermissibly suggestive and the admission of testimony concerning out-of-court identifications did not violate the defendant's right to due process. Hence, on the first issue we reverse the judgment by the court of appeals and return it to that court to address any issues raised by the defendant but not addressed in its opinion. On the second issue, we affirm the judgment of the court of appeals.

II. Facts and Proceedings Below

Late one evening, two clerks were working at Kitty's Adult Book and Video Store while: one customer was present. In preparation for a shift change, both clerks were standing behind the counter and counting the store's money in the single cash register. Then, a man entered the store, started to come behind the counter where the two clerks were standing, and said, "O.k. boys, give up your shit now." When the first clerk jumped over the counter to the customer side in an effort to flee, the robber pulled out a hatchet and said he would "axe" the second clerk if the first clerk went anywhere. The first clerk then stopped and stood by as the second clerk gave the robber money from the register. When the second clerk was unable to open the safe, as the robber demanded, the robber repeatedly swung the hatchet into the counter,. ‘

When the robber moved away from the counter, the first clerk began to walk towards an exit in the rear of the store. The robber raised the hatchet at him and said "I will axe you, I will follow you." When the robber departed with the money from the register, the first clerk then ran out of the store and called the police. When the police arrived, both clerks and the customer described the robber as a white male, approximately six feet tall, and weighing between 150 and 160 pounds.

Six days later, a strikingly similar robbery occurred at the same bookstore. This time, however, only the second clerk was present. After a brief struggle with the robber, who again carried a hatchet, the clerk gave the robber the money from the cash register. According to the second clerk, the same man committed both robberies.

A year after the robberies, the police summoned the two clerks and the customer to review a photographic lineup of six pictures, one of which was a picture of the defendant. The six pictures all portrayed light-skinned Caucasian males of approximately the same age, weight, and hair coloring. Despite the physical similarities, the defendant's image stood out because his skin tone was significantly lighter, either due to the lighting when the picture was taken or to the overexposure of the film. The other five photographs were similar in terms of lighting, exposure, and skin tone. Additionally, the defendant's picture was distinguishable from the other photo because he was leaning slightly forward with his head tilted, while the others were squarely positioned facing the camera.

Before showing the photographs to the clerks and customer, the officer provided each witness with a photographic lineup admonition, which addressed identification procedures and indicated that the witnesses should ignore any differences in the type or style of the photographs. A After reviewing the lineup, the first clerk identified the defendant as the robber, but stated that he was only 70% sure of his identification. The see-ond clerk selected the defendant's picture, but later indicated that he was unsure of his identification. The customer selected two pictures, including the defendant's, that resembled the robber.

The defendant was charged with three counts of aggravated robbery. Two of the three counts arose from the first incident, naming the first clerk as a victim of the robbery and the second clerk as a separate victim of the robbery. The third count arose from the second incident, when only the see-ond clerk was present,

Before trial, the defendant filed a motion to suppress any in-court and out-of-court identifications of the defendant by witnesses on the basis that the photographic lineup was impermissibly suggestive and inherently unreliable. The trial court found that that the officer who showed the witnesses the array took no suggestive measures that induced them to make inappropriate identifications. Despite the difference in appearance of the defendant's photograph, the trial court ruled that the array was not impermissibly suggestive. As a result, all three out-of-court identifications were admitted into evidence at trial.

At trial, the prosecution presented testimony from both clerks. The first clerk made an in-court identification, and stated that he was sure that the defendant was the robber. The second clerk was not asked to, and did not identify the defendant at trial. Instead, his pretrial identification was admitted into evidence, and he testified that he had selected the defendant's photograph because it appeared to be the closest match to the robber. He further testified that although the detective in charge of the lineup did not explicitly tell him who to pick, it was obvious based upon the detective's inflections during the identification procedure and because the defendant's image stood out from the others that the defendant's picture was the one to be chosen. The customer also testified about his pretrial identification of the defendant's picture, and stated that the detective mentioned that a suspect had been apprehended. The defendant's theory of defense was mistaken identity.

A jury convicted the defendant on all three counts of aggravated robbery. The trial court sentenced the defendant to two consecutive ten-year sentences for the counts arising from the first incident and to a concurrent ten-year sentence for the count arising from the second incident.

On appeal, the court of appeals held that the two charges from the first incident containing two counts were multiplicitous, and accordingly vacated the defendant's convietion for the robbery charge that listed the first clerk as the victim of the crime. While the court set forth several factors in considering whether the defendant's convictions were multiplicitous, the court ultimately held that the two charges were unconstitutional "primarily" because consecutive sentences such as those imposed for aggravated robbery convictions are mandatory, thus making disproportionate sentencing a distinct possibility. Also central to the court's analysis was its conclusion that robbery is a erime against property, and as a result, when only one taking of property occurs-as in this case, the store's property-there can be only one conviction of robbery. Borghest, 40 P.3d at 21. Concerning the testimony of the in-court and out-of-court identifications of the defendant, the court held that the photographic lineup was not impermissibly suggestive because the defendant's distinctive appearance alone did not lead to an identification by witnesses of the defendant as the robber. Accordingly, admission of testimony about identifications from the lineup did not violate the defendant's right to due process. Id. at 19.

We granted certiorari to review the judgment of the court of appeals on these issues.

III. Each Victim of a Robbery Forms the Basis of a Separate Charge of Robbery

A. Introduction

The defendant argues that he committed only one aggravated robbery during the first incident because there was only one violent taking of property from a common owner. Therefore, his conviction of two counts of aggravated robbery is multiplici-tous. In contrast, the prosecution argues that there were two robbery victims because the robber put both in fear of death or bodily injury and both possessed control over the property. Therefore, the defendant was properly convicted of two counts of aggravated robbery.

As background to our discussion, we explain the interplay between our robbery and aggravated robbery statutes. The elements of the crime of robbery are (1) that the defendant (2) in the State of Colorado (8) knowingly (4) took anything of value (5) from the person or presence of [another victim] (6) by the use of force, threats, or intimidation. CJI Criminal § 15:01 (1988). Aggravated robbery includes all of the elements of the crime of robbery, but also requires additional elements such as the use of a deadly weapon or putting the person robbed, or any other person, in reasonable fear of death or bodily injury. Id. at 15:06. Thus, one who commits an aggravated robbery has also committed the lesser included offense of robbery. See People v. Futamata, 140 Colo. 283, 241, 343 P.2d 1058, 1062 (1959) ("If the greater of two offenses includes all the legal and factual elements of the lesser, the greater includes the lesser.").

In light of the related nature of the two offenses, we focus our analysis of whether two robberies can arise out of a single taking of property primarily on the offense of robbery. However, this analysis will in turn apply to aggravated robbery, for which the defendant was convicted, for two reasons. First, aggravated robbery differs from simple robbery in the degree of force and violence directed at a victim. Thus, if we determine that robbery is a crime intended primarily to protect people and charges for robbery are based upon the number of vie-tims, this conclusion will be equally applicable to the potentially more violent crime of aggravated robbery. Second, because the commission of aggravated robbery includes the lesser crime of robbery, it would be contradictory to apply our conclusion with respect to robbery inconsistently with the greater crime of aggravated robbery. Similar to the court of appeals' analysis, we consider both the robbery and aggravated robbery statutes together. See Borghesi, 40 P.3d at 21.

Pursuant to part of the Double Jeopardy Clauses of both the United States and Colorado Constitutions, a person may not be put in jeopardy twice for the same offense. U.S. Const. amend. V:; Colo. Const. art. II, $ 18. In this case the defendant invokes the protection afforded by multiplicity, which occurs when the same offense is charged in multiple counts and results in multiple punishments. See, eg., United States v. More-head, 959 F.2d 1489, 1505 (10th Cir.1992).

We must determine, therefore, whether the defendant's threatening the two clerks, who were counting their employer's money at the single cash register, constitutes the same offense or multiple offenses under our aggravated robbery statute. Because the legislature establishes and defines offenses and determines "[wlhether a particular course of conduct involves one or more distinct 'offenses,'" we turn to an examination of our robbery and aggravated robbery statutes. See Sanabria v. United States, 487 U.S. 54, 70, 98 S.Ct. 2170, 57 LEd.2d 48 (1978).

In considering our robbery statutes, two possible constructions exist. If we construe the statutes as designed primarily to protect property interests, then only one robbery occurred because there was only one taking of property. In effect, such a construction means that the defendant robbed the store, not the clerks. If, on the other hand, we construe the statutes as designed primarily to protect persons, then there were two robberies because there were two victims during the first incident. That is, the defendant robbed the clerks, not the store.

B. Plain Language Analysis of the Robbery Statutes

To determine whether our robbery statutes protect persons or property we review how our statutes define a victim. Each robbery statute uses related but differing terms to describe the victim, and ultimately, we conclude that a plain language analysis does not resolve our competing interpretations.

The robbery statute provides that "A person who knowingly takes anything of value from the person or presence of another by the use of force, threats, or intimidation commits robbery." § 18-4-801, 6 C.R.S. (2002). The aggravated robbery statute provides that a person is guilty of aggravated robbery if during the act of robbery he "knowingly wounds or strikes the person robbed or any other person ... [or] knowingly puts the person robbed or any other person in reasonable fear of death or bodily injury ...." § 18-4-802(1)(b).

The phrase "person or presence of another" in the robbery statute refers to the vietim of a robbery in the singular, which suggests that the legislature may have intended that a robber commits a separate offense for each person against whom she applies force and intimidation. In contrast, the victim of an aggravated robbery is defined as "the person or any other person." Whether this phrase refers to a single vietim or a group of victims appears unclear. One possible reading-that "any other person" means a group of people-suggests that only one conviction based upon an incident involving multiple victims may have been contemplated. On the other hand, another possible reading of "any other person" refers to the victim in the singular, which suggests that similar to the offense of robbery, multiple victims give rise to multiple offenses.

Because aggravated robbery is a heightened form of the lesser included offense of robbery, and because the robbery and aggravated robbery statutes address this issue inconsistently, we conclude that the plain language of our robbery statutes does not provide guidance on whether aggravated robbery is a crime against the person or a crime against property. Hence, we shift our inquiry to legislative history of our robbery statutes.

C. Robbery at Common Law

In 1971, the legislature revised and reenacted the Criminal Code, but the robbery statutes remained essentially the same. Because both the old and the revised robbery statutes track the basic elements of common law robbery, and there is no indication that the legislature has departed from the usual and customary meaning of any of the common law terms, we seek guidance from the common law. See People v. Jenkins, 198 Colo. 347, 850, 599 P.2d 912, 918 (1979).

At common law, robbery was (1) the taking, with the intent to steal (2) the personal property of another (8) from his person or in his presence (4) against his will, by violence or intimidation. See 4 William Blackstone, Commentaries on the Laws of England (1899); 1 Roland Burrows, Odgers on the Common Law of England, part IV, ch. V.,(@8d Ed.1927). The crime of robbery, which was created before the crime of larceny, developed out of a concern for crimes of viloence. Although originally confined to cases of actual violence to the person, robbery eventually extended "not only to cases where property has been taken or delivered under a threat of bodily violence ... but also where the fear has resulted from apprehension of violence to the habitation and property...." 2 Wayne R. LaFave and Austin W. Scott, Jr., Substantive Criminal Law § 8.11, n. 1 (citing Commissioners on Criminal Law Fourth Report Ixvii (1839)).

As the crime of robbery expanded, so did the criminal law, "by means of the ancient quasi-criminal writ of trespass, to cover all taking of another's property from his possession without his consent, even though no foree was used. This misconduct was punished as larceny." American Law Institute, Model Penal Code art. 228, Comment 2(a) (1980). Larceny at common law was the willful and wrongful taking possession of and carrying away of another's property without consent and with the intent to deprive the owner of all benefits of ownership. 1 Burrows, Odgers on the Common Law, at 388.

Common law robbery, however, is easily distinguishable from the property crime of larceny in two ways. First, there can be no robbery without violence, and there can be no larceny with it. "It is the violence that makes the former an offense of greater atrocity than the latter." 185 A.S.R. 474, 476 (1909). Second, unlike larceny, which required the intent to permanently deprive an owner of property, robbery had no such requirement, and the time of possession could be exceedingly short. As one commentator explained,

[In an old case a thief snatched a lady's earring out of her ear with such violence that he tore her ear; he was immediately arrested and searched, but no earring was found in his possession. When the lady reached her home, she found it in her back hair. This was held to amount to robbery, because the thief had had possession of the earring, although only for a moment.

1 Burrows, Odgers on the Common Law, at 390 (citing Rex v. Farrell, 1 Leach 822 (17879)).

Modern commentaries on common law robbery also emphasize the assaultive element over the larcenous element of the crime. "Robbery may be considered a greater crime than the sum of the two lesser crimes of larceny and assault ... The modern trend is to consider robbery as an offense against the person rather than against property...." 2 LaFave & Seott, Substantive Criminal Law, at n. 3-4 (citing Mitchell v. State, 281 Ark. 112, 661 S.W.2d 390, 391 (1983)). Similarly, another commentator states that the "common law came to regard robbery 'amongst the most heinous felonies. It was deemed to be a more serious offense than larceny because of the added element of personal violence or intimidation." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 344 (8d Ed.1982). Although robbery violates both the interests of personal safety and security as well as the interest in protecting property, "as a matter of abstract classification, it probably should be grouped with offenses against the person rather than with offenses against property . . . ." Id. at 350.

Just as the common law of robbery emphasizes the violence associated with the taking, so do our cases construing robbery statutes. We have stated that the gravamen of the offense of robbery is the violent nature of the taking. People v. Marquez 692 P.2d 1089, 1097 (Colo.1984), rejected on other grounds by James v. People, 727 P.2d 850, 855 n. 4 (1986); Rowan v. People, 93 Colo. 473, 475, 26 P.2d 1066, 1067 (198338) ("the gravamen of the offense, as well as the conception of the lawmaking body, rested in the manner of the taking."); Jenkins, 198 Colo. at 350, 599 P.2d at 918 ("force or fear is the main element of the offense of robbery"); People v. Thomas, 181 Colo. 817, 320, 509 P.2d 592, 594 (1978) ("As we have held in the past, 'force or fear is the main element of the offense [of robbery]'"); Sterling v. People, 151 Colo. 127, 180, 876 P.2d 676, 678 (1962) ("The gravamen of [robbery] is the 'manner of the taking.’ ”).

Not only have we emphasized the violent nature of the taking, but we have also de-emphasized the larcenous component of robbery. For example, penalties do not vary based upon the value of the property taken. See, e.g. Maes v. People, 178 Colo. 46, 48, 494 P.2d 1290, 1291 (1972). Proof of ownership of the property taken is immaterial so long as the victim had sufficient control over it at the time of the taking. See, e.g., People v. Bartowsheski, 661 P.2d 235, 244 (Colo.1983); Hampton v. People, 146 Colo. 570, 574, 362 P.2d 864, 867 (1961). Thus, our case precedent reflects the common law emphasis on the assaultive nature of the crime, and indicates that our robbery statutes are primarily intended to protect persons and not property.

D. Disproportionate Sentencing Concerns and Legislative Designation of Robbery Statutes as "Offenses Against Property"

The court of appeals based its holding in significant part on the concern that if a defendant is convicted and sentenced on multiple counts of aggravated robbery based upon the number of victims in control of the property, disproportionate sentencing may occur. Borghesi, 40 P.3d at 21. Pursuant to section 18-1.3-406(1)(a), a court must sentence a defendant to consecutive sentences if he is convicted of two or more separate crimes of violence arising out of the same incident. While this concern for possible disproportionate sentencing is understandable, we reason that it is misplaced in this context.

Considerations of disproportionate sentencing are legally irrelevant to a double jeopardy multiplicity analysis. Once it has been determined that a defendant can be punished for his wrongful conduct, "the manner in which his conduct is divided into separate units for purposes of calculating his total sentence is of no constitutional significance except for deciding whether the total sentence is excessive...." Peter Westen & Richard Drubel, Toward a General Theory of Double Jeopardy, 1978 Sup.Ct. Rev. 81, 114. The constitutional determination of whether a sentence is excessive arises not under the Double Jeopardy Clause, but instead, under the Eighth Amendment, which the defendant did not and does not raise in this case.

Under the Eighth Amendment, no sentence is per se constitutional. Although courts afford a great deal of deference to legislative determinations regarding sentencing, a defendant is still entitled to an abbreviated proportionality review upon request for each separate sentence imposed under the crime of violence statute. Close v. People, 48 P.3d 528, 540 (Colo.2002); see also §$ 18-1.83-406(@)(a)(I). If an abbreviated proportionality review gives rise to an inference of gross disproportionality, a defendant is then entitled to an extended proportionality review. Close, 48 P.3d at 541, see also People v. Deroulet, 48 P.3d 520, 527 (Colo.2002).

Additionally, statutory provisions exist to provide courts with sufficient discretion to mitigate disproportionate sentences when appropriate. - Pursuant to section 18-1.83-406(1)(a), courts have the discretion to modify sentences for violent crimes in unusual and extenuating cireumstances. See also Borghesi, 40 P.3d at 25 (Nieto, J., concurring in part and dissenting in part). Although convicted defendants must still serve modified sentences consecutively, courts may modify sentences below the statutory range, even to include probationary sentences, if the defendant is eligible. Id., People v. Byrum, 784 P.2d 817, 818 (Colo.App.1989) (holding that evidence of defendant's mental problems, lack of prior convictions, regular medical treatment, and model prison behavior warranted a downward modification of a mandatory sentence).

The defendant argues that the statutory designation of robbery as an offense against property as opposed to an offense against the person indicates the legislature's intent to treat our robbery statutes primarily as protective of property. We are not persuaded.

Such designations are generally left to the revisor of statutes, who possesses no authority to make substantive statutory changes. Hence, we may draw no implications or presumptions of legislative intent. Even if we assume arguendo that this designation reflects the will of the General Assembly, we deem it of limited value because the statutes incorporate both larcenous and assaultive elements.

On balance, we reason that the legislative designation of the erime of robbery as an offense against property is less persuasive than the common law principles of robbery upon which our statute is based and our own precedent, both of which emphasize the assault element and deemphasize the theft element. - Other jurisdictions support our rationale that the violent nature of the taking merits the treatment of robbery as an offense against the person, even though the crimes are classified under the code heading of offenses against property.

Hence, we conclude that Colorado's robbery statutes are intended primarily to protect persons, not property. Charging, convicting, and sentencing a robber on multiple counts of robbery based upon the number of persons in control of the property taken does not offend multiplicity principles because each person who is subject to force and intimidation constitutes a victim of a separate offense under our robbery statutes. We hold, therefore, that a robber may be convict, ed of more than one count of robbery for a single taking of property from more than one person.

E. Application

We begin our application of the principles discussed by initially considering the requirement of robbery that property must be taken from the "victim's person or presence of another." Our case law construes the term "presence of another" to mean that the property taken must be within the victim's reach, inspection or observation so that the victim would be able to retain control over the property but for the force or threat of force directed by the perpetrator against the victim. See Bartowsheski, 661 P.2d at 244.

Thus, our holding that the state may charge a defendant with more than one robbery for a single taking from more than one victim is limited by the "presence of another" requirement. Not every person present during a robbery will necessarily give rige to an additional charge. Despite this limitation, the court of appeals' hypothetical of one defendant who robs fifteen clerks appears superficially accurate. An armed robber might be convicted of fifteen counts and sentenced to fifteen consecutive sentences for fifteen crimes. Such a lengthy sentence appears consistent with the purpose expressed by our robbery statutes, but it would occur only when each of the fifteen employees possessed control over the employer's property at the time of the taking, and each of the fifteen were subject to the robber's force or intimidation, and each of the fifteen were put in reasonable fear of death or bodily injury. While possible, this fact situation appears to us to be not very probable.

In this case both clerks, who were counting the money in the cash register, had sufficient control over the store's property when the defendant brandished a hatchet and demanded money from the register. The defendant directed threats to both employees when he sought and obtained control over the store's money. - While it was the second clerk who handed over the money, the property was taken from the presence of the first clerk, who would have been able to retain control over it but for the threats by the defendant to the second clerk,. Because the common property taken from the second clerk was also taken from the presence of another-the first clerk-the robber's acts constitute different offenses as to each victim under our aggravated robbery statute.

Hence, the judgments of conviction for both clerks are not multiplicitous because the defendant is being punished for two separate offenses, or the robbery of each clerk, and not for the same offense. Accordingly, the trial court's imposition of separate sentences for the first robbery was proper, and we overturn the court of appeals' reversal of the defendant's conviction for one count of aggravated robbery.

IV. Because the Photographic Array Was Not Impermissibly Suggestive, the Admission of Out-of-Court Identifications Did Not Violate the Defendant's Due Process Rights

A defendant is denied due process when an in-court identification is based upon an out-of-court identification which is so suggestive as to render the in-court identification unreliable People v. Mack, 638 P.2d 257, 265 (Colo.1981). In Bernal v. People, 44 P.3d 184, 190-91 (Colo.2002), we outlined a two-part test to determine the admissibility of out-of-court photographic identifications. First, a court must consider whether the defendant has demonstrated that the array was impermissibly suggestive. Id. at 191. If the defendant has not met this burden, no further inquiry is necessary. Second, if the defendant has met this burden, then the state must show that the identification was nevertheless reliable under the totality of the circumstances. Id. Relevant factors to determine whether a pretrial photographic identification procedure is impermissibly suggestive include "the size of the array, the manner of its presentation by the officers, and the details of the photographs themselves." Id. (citing United States v. Wiseman, 172 F.3d 1196, 1208 (10th Cir.1999)).

With respect to the size of the array, courts have held that a lineup with as few as six pictures is not a per se due process violation, but the fewer the pictures, the closer the array must be serutinized for impermissibly suggestive irregularities. See, e.g., United States v. Sanchez, 24 F.3d 1259, 1262 (10th Cir.1994). If the number of photographs is not so small to make the array impermissibly suggestive, and there is nothing suggestive in the manner of the official's presentation of the array, then the remaining consideration is whether the photographs in the array are so limited that the defendant is the only one to match the witness's description of the perpetrator. Bernal, 44 P.3d at 191. To satisfy this consideration, the police need not provide a photo line-up containing only exact replicas of the defendant's picture. Instead, all that is required is that the "photos are matched by race, approximate age, facial hair, and a number of other characteristics." Id. at 191-192 (citing People v. Webster, 987 P.2d 836, 839 (Colo.App.1998)). However, an array that includes a photograph that contains a unique feature that directly relates to an important identification factor may be impermissibly suggestive. Id.

If a court finds that an array is impermissibly suggestive, then it must determine whether, under the totality of the circumstances, the state can demonstrate that the identification was nevertheless reliable. Factors to consider include: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention; (8) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Bernal, 44 P.3d at 192; People v. Monroe, 925 P.2d 767, (Colo.1996). Against these factors, courts must weigh the corrupting effect of the suggestive identification. Manson v. Brathwaite, 482 U.S. 98, 114, 97 S.Ct. 2248, 53 L.Ed.2d 140 (1977). As long as the totality of the cireumstances does not suggest a very substantial likelihood of misidentification, identification testimony will be admissible. Id., Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Bernal, 44 P.3d at 192.

The defendant argues that the differences in lighting and positioning cause his photograph to stand out from the others, in effect highlighting his picture for selection by witnesses. He contends that identifications of him were so tainted by the suggestive photo array that admission of both the out-of-court and in-court testimony on these identifications violated his right to a fair trial.

Initially we note that our standard of review concerning the constitutionality of pretrial identification procedures is a mixed question of law and fact. Bernal, 44 P.3d at 190. While the trial court's findings of fact are entitled to deference, we may afford different weight to those facts and reach a different conclusion in light of the legal standard. Id. In this case, we defer to the trial court's findings that the identification procedures were strictly conducted and the presentation of the array to witnesses by the police was not suggestive.

We conclude, consistent with the views of both the trial court and the court of appeals, that the highlighting of the defendant's image under the cireumstances of this case did not cause the photo array to be impermissi-bly suggestive. We base our conclusion on the fact that neither the difference in lighting nor the positioning of the defendant in his photograph is connected to a specific, identifying feature of the defendant raised by any of the witnesses. As we stated in Bernal, "a photographic array that includes a photo that is unique in a manner directly related to an important identification factor may be held impermissibly suggestive." 44 P.3d at 192. In Bernal, we concluded that the defendant's photograph was impermissibly suggestive primarily because he was the only Hispanic in the array, and both eyewitnesses to the crime identified the robber as Hispanic. Id. at 198. Here, because none of the witnesses reviewing the array described the robber with features uniquely highlighted by the defendant's photograph, the array was not impermissibly suggestive.

Other jurisdictions have reached the same results in similar cireumstances, holding that differences in shade and tone of a defendant's photograph do not render an array impermissibly suggestive. Particularly persuasive is United States v. Bubar, 567 F.2d 192 (2d Cir1977), in which the defendant argued that the photographic lineup was im-permissibly suggestive because, among other things, the focus and contrasts were sharper in his photograph and a narrow strip of light ran across the field above his head. The Second Circuit disagreed, holding that "these differences did not render the spread suggestive ... much less impermissibly so within the meaning of [the legal standard]" 567 F.2d at 199.

The defendant relies upon the Tenth Circuit case Wiseman to challenge our conclusion. We distinguish in part and disagree in part with Wiseman. In that case the court concluded that a photographic lineup was impermissibly suggestive primarily because the defendant's picture stood out from the others. The defendant's photograph depicted him with cireles under his eyes, with a significantly lighter pallor than the others, and in every picture but the defendant's, a thin necklace was visible around each subject's neck. Witnesses did not use any of these features to identify the defendant. In addition, the court noted that police officers made comments to some of the witnesses viewing the array that a suspect had been arrested, and comments to other witnesses that the perpetrator of the robberies might not be in the array. Wiseman, 172 F.3d at 1209-10.

While the facts of Wiseman are somewhat analogous to our case in that both defendants' pictures are distinguishable from others presented in the array, the Tenth Cireuit's holding is inconsistent with the rationale stated in Bernal. As we previously set forth in Bernal and in this opinion, an array that includes a photo unique in a manner directly related to an important identification factor may be impermissibly suggestive. However, as long as the photos match by approximate age, race, facial hair, and other characteristics, distinctive features unrelated to a witness's identification do not render an array suggestive. In our view, the officer's comments to witnesses in Wiseman that a suspect was in custody, not the way the defendant's photo stood out from the others, are what arguably could cause the array in that case to be impermis-sibly suggestive. Such is not the case here because the investigating officer presented the photographic lineup admonition to each witness, and at the pretrial suppression hearing, the trial court ruled that the officer made no improperly suggestive overtures.

Having held that the array was not imper-missibly suggestive, we need not reach the second prong of the test set forth in Bernal. Therefore, we affirm the judgment of the court of appeals on this issue.

V. Conclusion

For the reasons stated, we reverse the judgment of the court of appeals on the issue of the defendant's multiple counts and convictions arising from a single incident, and affirm the judgment of the court of appeals on the issue of the photographic lineup. We therefore return this case to the court of appeals to address any issues raised by the defendant on appeal not addressed by that court in its opinion.

Justice RICE and Justice COATS do not participate.

      . The photographic lineup admonition states in part:
      In a moment I am going to show you a group of photographs. This group of photographs may or may not contain a picture of the person who committed the crime now being investigated. The fact that the photos are being shown to you should not cause you to believe or guess that the guilty person has been caught. You do not have to identify anyone. It is just as important to free an innocent person from suspicion as it is to identify those who are guilty ... [PJay no attention as whether the photos are in color or black and white or any other difference in the type or style of photographs. You should study only the person in each photograph. (Emphasis added).

      . The customer's testimony at trial contradicted his testimony at the pretrial hearing, when he stated that the detective in charge of the photo lineup said nothing about the apprehension of a suspect.

      . Specifically, the court of appeals raised the hypothetical that an armed robber who took an employer's money from one cash register in the presence of fifteen employees could be charged with fifteen counts and sentenced to fifteen consecutive sentences.

      . We granted the state's petition for certiorari on the following issue:
      1. Whether a robber may be convicted on multiple counts of robbery when he has committed one taking of property from two or more people.
      Additionally, we granted the defendant's cross-petition for certiorari on the following issue:
      2. Whether the court of appeals erred in holding that the defendant's due process right to a fair trial was not violated by the admission of testimony concerning an imper-missibly suggestive photographic array.

      . Sanabria refers to the "allowable unit of prosecution," which is the manner in which a defendant's conduct may be divided into discreet acts for the purpose of calculating the number of offenses. 437 U.S. at 69-70, 98 S.Ct. 2170. In this case, we do not find the term "unit of prosecution" helpful, and instead focus on whether our robbery statutes are intended primarily to protect persons or property.

      . - See Commonwealth v. Rozplochi, 385 Pa.Super. 357, 561 A2d 25, 28-29 (1989) (holding that defendant could be convicted of two robberies for threatening two people during the course of a single theft in part because the state robbery statute "was written with regard to an individual person being placed in danger ... and that a separate offense is committed for each individual person placed in such danger."); Jordan v. Commonwealth, 2 Va.App. 590, 347 $.E.2d 152, 155 (1986) (''The statute refers to the victim in the singular and suggests that the General Assembly's primary purpose was the protection of an individual from violence and fear of harm during a robbery.")

      . Prior to the reenactment in 1971, robbery was "the felonious and violent taking of money, goods or other valuable thing from the person of another by force or intimidation," and aggravated robbery required additional elements such as using a dangerous weapon with the intent to kill or wounding another with a dangerous weapon. §§ 40-5-1(1) and (2), 3 C.R.S. (1963).

      . See American Law Institute, Model Penal Code art. 223, Comment 2(a)(1980); Wayne R. LaFave & Austin Scott, Jr. Criminal Law, 692 n. 1 (1972).

      . For additional commentary on the common law crime of robbery, see Edward Coke, The Third Part of the Institutes of the Laws of England: Concerning High Treason, and Other Pleas of the Crown, and Criminal Causes 68 (1797).

      . - For additional commentaries emphasizing the assaultive element of robbery, see also Model Penal Code § 222.1 (Official Draft and Revised Comments 1985) (''The primary concern [of robbery] is with the physical danger or threat of danger to the citizen rather than with the property aspects of the crime."); 77 C.J.S. Robbery § 2 (2002) ("'While it can be characterized as an offense against both person and property, robbery is held to be primarily an offense against the person.") (citing Degler v. State, 741 P.2d 659 (Alaska App.1987); Ross v. Commonwealth, 710 S.W.2d 229 (Ky.1986), overruled on other grounds; Winter v. Motel Assoc. of Laguardia, 127 Misc.2d 486, 486 N.Y.S.2d 656 (N.Y.Sup.Ct.1985); Whitley v. Commonwealth, 223 Va. 66, 286 S.E.2d 162 (1982)); 67 Am.Jur.2d Robbery § 22 ('The force or intimidation employed is the essence of the offense."); Joseph T. Bockrath, Prosecution for Robbery of One Person as a Bar to Subsequent Prosecution for Robbery of Another Person Committed at the Same Time, 51 A.L.R.3d 693 (1973) ("Ordinarily, where several persons are robbed at the same time, the offender may be indicted and convicted for the robbery of each person as a distinct offense. ...."); United States Department of Justice, Bureau of Justice Statistics, Recidivism of Prisoners Released in 1994, available at http://www.ojp.us-doj.gov/bjs/abstract/rpr94.htm (categorizing robbery as a violent offense, along with homicide, kidnapping, rape, and assault as opposed to a property offense with burglary, larceny, theft, arson, and fraud).

      . There exists a split of authority among courts in other jurisdictions on this issue. Some have emphasized the assaultive over the larcenous element of robbery and upheld multiple convictions and sentences when the defendant takes commonly-owned property from the presence of more than one person. See, e.g., Thomas v. Warden, 683 F.2d 83, 85 (4th Cir.1982); Ex parte Hawkins, 6 S.W.3d 554, 560 (Tx.Crim.App.1999); Commonwealth v. Rozplochi, 385 Pa.Super. 357, 561 A.2d 25, 30-1 (1989); Mitchell v. State, 281 Ark. 112, 661 S.W.2d 390, 392 (1983); People v. Ramos, 30 Cal.3d 553, 180 Cal.Rptr. 266, 639 P.2d 908, 928-29 (1982), rev'd on other grounds, 463 U.S. 992, 103 S.Ct. 3446, 77 LEd.2d 1171 (1983); Commonwealth v. Levia, 385 Mass. 345, 431 N.E.2d 928, 931 (Ma.1982); State v. Shoemake, 228 Kan. 572, 618 P.2d 1201, 1206 (1980). Others have limited criminal lability for multiple counts of robbery under circurastances analogous to this case, based upon the theory that robbery is a crime against property. See, e.g., United States v. Szentmiklosi, 55 M.J. 487, 491 (C.A.A.F.2001); People v. Wakeford, 418 Mich. 95, 341 N.W.2d 68, 75-6 (1983); United States v. Canty, 469 F.2d 114, 126 (D.C.Cir,1972); State v. Faatea, 65 Haw. 156, 648 P.2d 197, 198 (1982); State v. Perkins, 45 Or.App. 91, 607 P.2d 1202, 1205 (1980); Rogers v. State, 272 Ind. 65, 396 N.E.2d 348, 355 (1979); State v. Whipple, 156 N.J.Super. 46, 383 A.2d 445, 448 (1978); State v. Potter, 285 N.C. 238, 204 S.E.2d 649, 659 (1974).
      Because each court's conclusion depends upon its state statute, these cases are generally not instructive in our review of our robbery statutes. However, several cases have analyzed state statutes, such as ours, that are consistent with the common law definition of the crime, and held that multiple charges arise out of a single taking from multiple victims. See Borchardt v. State, 367 Md. 91, 786 A.2d 631, 662-65 (2001); Facon v. State, 144 Md.App. 1, 796 A.2d 101, 118 (2002); State v. Jones, 344 S.C. 48, 543 S.E.2d 541, 543-44 (2001); Jordan v. Commonwealth, 2 Va.App. 590, 347 S.E.2d 152, 155 (1986). See also United States v. Mann, 119 F.Supp. 406, 407 (D.D.C.1954) ("Although robbery at common law is a species of aggravated larceny, the gist of the offense is a crime against the person, as larceny is an offense against the possession."). But see State v. Collins, 174 W.Va. 767, 329 S.E.2d 839, 846 (1984) ("we believe that it is impossible to conclude from either the common law or [the state robbery statute] that an attempt to rob a store by presenting a firearm and leaving without taking any property can ... result in multiple convictions of attempted aggravated robbery for each clerk present in such store.").

      . Arguably, contra People v. Bartowsheski, 661 P.2d 235, 244 (Colo.1983) ("The gravamen of robbery is the application of physical force or intimidation against the victim at any time during the course of a transaction culminating in the taking of property from the victim's person or presence."). The defendant argues that based upon Bartowsheski, the essence of the crime of robbery is a hybrid of the larcenous and assaul-tive elements, and the gravamen of the crime is a "violent taking." Because there was only one violent taking in this case, the defendant should be convicted and sentenced for only one count of aggravated robbery. We disagree with this analysis as we set forth in the body of our opinion. In short form, our analysis effectively adds three words to the "violent taking" hybrid-robbery under our statutes involves the violent taking "from a person."

      . See also Akhil Reed Amar, Double Jeopardy Law Made Simple, 106 Yale L.J. 1807, 1818 (1997) ("'the Double Jeopardy Clause imposes no limits on how the legislature may carve up conduct into discrete legal offense units."); Missouri v. Hunter 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535, (1983) ("With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended."); Patton v. People, 35 P.3d 124, 129 (Colo.2001) ('The Double Jeopardy Clauses do not prevent the legislature from specifying multiple punishments based upon the same criminal conduct.").

      . In this case, the defendant at sentencing indicated that he had no prior felony convictions, had stability in his life, and had maintained consistent employment for some time. The trial court sentenced the defendant to the statutory minimum of ten years for count one and ten years for count two. On count three, which arose from the second incident when only the second clerk was present, the trial court sentenced the defendant to serve a sentence concurrent with the sentence on counts one and two.

      . The robbery statutes are located in Article 4 of the Criminal Code, entitled "Offenses Against Property," instead of in Article 3, entitled "Offenses Against the Person."

      . See State v. Jones, 344 S.C. 48, 543 S.E.2d 541, 543-44 (2001) (addressing S.C. Stat. § 16-11-330); Ex Parte Hawkins, 6 S.W.3d 554, 560 (Tx.Crim.App.1999) (considering Tx. Penal § 29.03); Commonwealth v. Rozplochi, 385 Pa.Super. 357, 561 A.2d 25, 28 (1989) (addressing 18 Pa. Stat. Ann. § 3701). See also People v. Jones, 217 Ill.App.3d 175, 160 Ill.Dec. 184, 576 N.E.2d 1138, 1138-39 (1991), rev'd on other grounds (holding that theft, a crime against property, is not a lesser-included offense of armed robbery, which is a forcible felony carried out against a person or in the presence of a person despite being captioned in the Illinois Revised Statutes as a crime against property.). These cases all held that because robbery protects people, separate victims of an incident involving a single taking create separately chargeable offenses under the same statute.

      . Consistent with our holding today, we have previously held that separate victims can form the basis of multiple counts and convictions for the crimes of menacing and reckless endangerment. People v. Wieckert, 191 Colo. 511, 514, 554 P.2d 688, 690 (1976), overruled on other grounds by Villafranca v. People, 194 Colo. 472, 475, 573 P.2d 540, 543 (1978).

      . The defendant's photograph in Bernal also had a clear white background, while the others were taken against a neutral background, and there were only six photographs in the array. However, these factors only compounded the most compelling deficiency of the array-the defendant's ethnicity-which was the unique identifying feature raised by both witnesses shortly after the crime occurred.

      . See also State v. Hunter, 43 S.W.3d 336, 341 (Mo.App.2001); Brewer v. State, 219 Ga.App. 16, 463 S.E.2d 906, 911 (1995); Shaw v. State, 846 S.W.2d 482, 484 (Tx.App.1993); People v. Johnson, 3 Cal. 4th 1183, 14 Cal.Rptr.2d 702, 842 P.2d 1, 17 (1992); People v. Robert, 184 A.D.2d 597, 585 N.Y.S.2d 445, 446 (1992); State v. Neal, 353 N.W.2d 83, 89 (Iowa 1984).

      . The second clerk and the customer testified differently at trial than they did during the pretrial suppression hearing on the issue of whether the detective made suggestive comments before displaying the photo array. The second clerk testified at trial that the detective had inflected his voice in such a way that suggested the clerk should pick the defendant's photograph. He testified to the contrary at the suppression hearing that neither the detective's lineup admonition nor the array itself was suggestive. The customer, present during the first incident, testified at trial that before viewing the array, the detective explained that a suspect had been apprehended. As was the case with the second clerk, the customer testified to the contrary at the pretrial hearing. He testified that the officer made neither suggestive comments about the status of the investigation nor the apprehension of a suspect.
      We review the defendant's argument concerning the admissibility of the out-of-court photo identifications by considering only the evidence presented at the pretrial hearing. Thus, we express no opinion concerning whether the trial court would have made the same finding of fact at the hearing had the second clerk and customer testified in the same way that they did at trial. Of course, the defendant could use both the second clerk's and the customer's trial testimony to support his theory of mistaken identity.


author: Justice HOBBS

text:
    COLORADO DEPARTMENT OF REVENUE, Petitioner, v. Jake A. GARNER, Respondent.
    No. 02SC235.
    Supreme Court of Colorado, En Banc.
    March 24, 2003.

      Ken Salazar, Attorney General, Robert H. Dodd, Jr., Assistant Attorney General, Revenue Unit, Business and Licensing Section, Denver, Colorado, Attorneys for Petitioner.
    Larry A. Garner, Golden, Colorado, Attorney for Respondent.
   Justice HOBBS

delivered the Opinion of the Court.

The court of appeals construed section 42-2-188(8), 11 C.R.S. (2002), to prohibit the Colorado Department of Revenue (Department) from revoking the license of a driver who drove while his license was under restraint. The court of appeals required, as a condition for extension or renewal of revocation, that the driver be actually convicted of another driving offense or violation. See Colo. Dep't of Revenue v. Garner, 53 P.3d 763, 764 (Colo.App.2002). The Department contends that (1) commission of an "offense" is required, not a "conviction," (2) the offense may be the act of driving while one's license is under restraint, and (8) the Department's receipt of an accident report may trigger the revocation renewal or extension action. The statute provides:

The department, upon receiving a record of conviction or accident report of any person for an offense committed while operating a motor vehicle, shall immediately examine its files to determine if the license or operating privilege of such person has been suspended or revoked. If it appears that said offense was committed while the license or operating privilege of such person was revoked or suspended, except as permitted by section 42-2-182.5, the department shall not issue a new license or grant any driving privileges for an additional period of one year after the date such person would otherwise have been entitled to apply for a new license or for reinstatement of a suspended license and shall notify the district attorney in the county where such violation occurred and request prosecution of such person under subsection (1) of this section.

§ 42-2-188(8), 11 C.R.S. (2002) (emphasis added).

We agree with the Department and reverse the judgment of the court of appeals.

I.

Jake Garner (Garner) was convicted of driving while alcohol impaired. That incident occurred in June of 2000. His breath alcohol content was 0.152 grams of alcohol per 210 liters of breath,. The arresting officer seized Garner's driver's license. The Department sent a notice of driver's license revocation to Garner at the address last registered in the Department's records,. The notice informed Garner that his driver's license was being revoked because of an alcohol offense, pursuant to section 42-2-126(2)(a)(I), 11 C.R.S. (2000).

Garner failed to appear at the scheduled revocation hearing, and the Department revoked his license for three months-from July 22 until October 23, 2000. On August 19, 2000, Garner was driving his car when another car rear-ended his car. Although Garner was not responsible for causing the accident, the investigating officer ticketed him for driving under restraint.

At the end of the initial revocation period, the Department issued Garner a new driver's license. However, after receiving the accident report, the Department revoked Garner's driver's license for an additional year, pursuant to section 422-1388), 11 CRS. (2002). Garner requested a hearing on the revocation before a hearing officer.

The hearing officer found that Garner committed the offense of driving under restraint, as defined in - section 42-2-138(1)(d)(I), 11 C.R.S. (2000). Although Garner had not actually received the Department's revocation notice on the first offense, because he had moved, the hearing officer found that Garner had knowledge of cireum-stances sufficient to cause a reasonable person to be aware that his or her license was under restraint. The record has proof of these circumstances: 1) Garner's breath alcohol level was over 0.10 grams of alcohol per 210 liters of breath, mandatory grounds for license revocation; 2) after the arresting officer seized his driver's license, Garner applied for an identification card, rather than a replacement driver's license, indicating that he knew that his driver's license would be or had been suspended; 3) Garner had constructive notice of the restraint because the Department mailed the notice to his last address of record and Garner did not report his new address.

Garner appealed the additional one-year license revocation to the district court, in part, on the grounds that the district attorney had dismissed the driving under restraint charge and a conviction is necessary under section 42-2-138(8), 11 C.R.S. (2002), for an additional revocation. The district court issued an order reversing Garner's license revocation. The court of appeals affirmed, holding that the driver must be con-viected of a driving offense committed while the driver's license was revoked before the Department can extend driver's Heense revocation under section 42-2-188(8), 11 C.R.S. (2002). Garner, 53 P.3d at 764.

IL

We hold that the Department, upon receiving an accident report for a person who is driving under revocation, can impose an additional period of revocation under section 42-2-1838(8), 11 C.R.S. (2002), after finding that the person was driving under restraint at the time of the accident.

A.

Standard of Review

The court of appeals determined that the hearing officer exceeded his statutory authority because "[slection 42-2-138(8) does not authorize the Department to make an independent determination of whether a driver has committed the requisite driving offense for the additional restraint action," but, rather, authorizes the Department to extend revocation only when the driver has been convicted of an offense. Garner, 58 P.3d at 764. Because this is a question of law, we conduct de novo review. Telluride Resort and Spa, LP. v. Colo. Dep't of Revenue, 40 P.3d 1260, 1264 (Colo.2002).

When construing statutory provisions, we seek to effectuate the intent of the General Assembly. Leonard v. McMorris, 63 P.3d 323, 826 (Colo.2008). We examine the statutory language, giving words and phrases their commonly accepted and understood meaning. Adams v. Farmers Ins. Group, 988 P.2d 797, 801 (Colo.1999). We give effect to every word in a statute and harmonize potentially conflicting provisions, if possible. Telluride, 40 P.3d at 1265. We avoid interpretations that lead to absurd results. Town of Erie v. Eason, 18 P.8d 1271, 1276 (Colo.2001). We are not required to accept the enforcement agency's interpretation of a statute, but we give it careful consideration. See Douglas County Bd. of Equalization v. Clarke, 921 P.2d 717, 721 (Colo.1996).

B.

Plain Meaning of the Statute

The statute we construe provides the Department with authority to determine whether a person was driving under driver's license restraint when he or she was involved in an automobile accident and, if so, to extend the license suspension or revocation.

Section 422-1888), 11 C.R.S. (2002), states that the Department shall examine its files "upon receiving a record of conviction or accident report." "Or" is a word "used to connect words, phrases or clauses representing alternatives." Random House Webster's Unabridged Dictionary 1360 (2d ed.1998). The Department is required to take "immediate" action in either of two cireumstances involving a driver who operates a motor vehicle while under license restraint: (1) it receives a record of conviction or (2) it receives an accident report involving the person. We presume the General Assembly means what it clearly says. State v. Nieto, 998 P.2d 493, 500 (Colo.2000).

The word "offense" in the statute does not equate to "conviction." The statute provides that the Department must extend the revocation if it appears that an "offense" or "violation" was committed during the license restraint period. "Conviction" has a specific meaning in the Uniform Motor Vehicle Law as "conviction in any court of record or any municipal court or acceptance of a penalty assessment notice and payment of the pre-seribed penalty in accordance with the provisions of section 42-4-1701." § 42-1-102(19), 11 C.R.S. (2002). Offense and violation are not specifically defined in the code. Elsewhere in the Uniform Motor Vehicle Law the General Assembly uses the phrase "convicted of any offense," in juxtaposition to the phrase "offense committed" in section 42-2-138(3), 11 C.R.S. (2002), which we construe here. See, eg., §§ 42-2-104(8)(F), -125(@)@), 11 C.R.S. (2002).

The court of appeals relied on several cases discussing the type of conviction required for revocation extension. However, the extensions in those cases were based on records of conviction, and the cases did not address a situation where the extension is based on an accident report. See Harris v. Colo. Dep't of Revenue, 714 P.2d 1825 (Colo.App.1985); Lathe v. State, 691 P.2d 356 (Colo.App.1984); Conway v. Colo. Dep't of Revenue, 653 P.2d 411 (Colo.App.1982).

We construe statutes to give effect to all terms, when possible. Here, the words "or accident report" would have no effect if the Department were required to wait until a conviction had been entered before taking action. Also, the Department could not act "immediately" upon receiving the accident report, as the statute directs, if the Department were required to wait for a conviction.

C.

Remedial Nature of the Department's Action

Our interpretation of the plain language of this statute is consistent with the General Assembly's purpose. "[The intent of the legislature in imposing the sanction of driver's license revocation was to serve the remedial purpose of fostering the safety of all persons using the highways of the state." Deutschendorf v. People, 920 P.2d 58, 60 (Colo.1996). License suspension or revocation for driving under restraint is related to the public welfare purpose of the criminal offense of driving under restraint. See In re People v. Ellison, 14 P.8d 1084, 1087 (Colo. 2000). .

Driving a motor vehicle is a privilege, not a right. Deutschendorf, 920 P.2d at 60. Since driving is an inherently dangerous activity, especially by someone who has been convicted of violating motor vehicle laws in the past, the General Assembly entrusted the Department with broad authority to extend suspension or revocation when it becomes aware that an individual is driving under restraint, either through a record of conviction or an accident report. "Because regulations governing the Hceensing of drivers, including regulations for restraining a driver's license, are essential to public safety, driving under restraint impairs the effectiveness and legitimacy of the driving regulation scheme." Ellison, 14 P.3d at 1088. The Department has consistently interpreted the statute as authorizing additional suspension or revocetion in these cireumstances, and the Department is correct in doing so.

Garner drove while his license was under restraint, and the Department learned of this occurrence through an accident report involving a vehicle he was driving. Although he did not have actual knowledge of the Department's restraint notice, Garner had knowledge of cireumstances sufficient that a reasonable person would know of the restraint: the arresting officer seized his driver's license for the alcohol offense; his breath alcohol level was over 0.10 grams of aleohol per 210 liters of breath, a grounds for mandatory license revocation; he applied for an identification card, rather than a replacement driver's license, indicating that he knew that his driver's license would be or had been suspended; and he had constructive notice of the restraint because the Department mailed the notice to his last address of record and Garner had not reported his new address to the Department. Such cirenmstances are sufficient to satisfy the knowledge requirement we identified in Ellison, 14 P.3d at 1036-37.

The hearing officer's order of an additional one-year revocation was justified under the law and the facts of this case. After receiving an accident report, the Department is required to extend or renew revocation for one year upon a finding that a driver listed in the report committed a driving offense while his or her driver's license was suspended or revoked. § 422-1388), 11 CRS. (2002). Upon holding the requested administrative hearing, the hearing officer found that Garner committed the offense of driving under restraint.

IIL

Accordingly, we reverse the court of appeals. We remand the case to the court of appeals for further proceedings regarding any other issues remaining in the case.

Justice RICE does not participate.

      . The General Assembly has not amended section 42-2-138(3) in any manner relevant to this case since Garner's license was revoked in 2000; therefore, we cite to section 42-2-138(3), 11 C.R.S. (2002).

      . We accepted certiorari on two questions: (1) Whether a driver whose license has been revoked, who has notice of the revocation, who continues to drive and is involved in an accident, who is identified as the driver of a motor vehicle in the accident report and is charged with driving under restraint, avoids the revocation extension imposed by section 42-2-138(3) C.R.S., when the district attorney drops criminal charges associated with the accident? (2) Whether the Court of Appeals erred as a matter of law by holding that an "accident report alone" does not support the extension of revocation, where the statute, § 42-2-138(3), C.R.S., directs "(he department, upon receiving a record of conviction or accident report of any person for an offense committed while operating a motor vehicle ... to immediately ... determine if the license or operating privilege of such person has been suspended or revoked," and if so, to extend the restraint and notify the district attorney of the violation? (Emphasis added by petitioner Department of Revenue).

      . See § 42-4-1301(1), 11 C.R.S. (2000).

      . See § 42-2-138(1)(a), 11 C.R.S. (2000).

      . The department shall revoke the license of any person upon its determination that the person: (I) Drove a vehicle in this state when the amount of alcohol, as shown by analysis of the person's ... breath ... [was] 0.10 or more grams per two hundred ten liters of breath at the time of driving or within two hours after driving.
      § 42-2-126(2)(a)(I), 11 C.R.S. (2000).

      . From the transcript of the trial court's oral proceedings, it appears that the trial judge believed that the "offense" upon which the additional revocation must be based cannot include driving under restraint. We disagree. The trial judge also found that the statute was unconstitutional as applied because the hearing officer decided to revoke Garner's license before hearing all of the evidence. This issue is not before us.


author: Chief Judge HUME.

text:
    NATIONAL REAL ESTATE INVESTMENT, LLC, Plaintiff-Appellant and Cross-Appellee, v. WYSE FINANCIAL SERVICES, INC.; Irvin Borenstein, individually; and Real-America Ventures, LLC, Defendants-Appellees and Cross-Appellants, and Marilyn G. Green, Public Trustee, Douglas County, Defendant.
    No. 01CA0799.
    Colorado Court of Appeals, Div. III.
    April 11, 2002.
    Certiorari Granted April 14, 2003.

      John M. Dudgeon, Lakewood, Colorado, for Plaintiff-Appellant and Cross-Appellee.
    Irvin Borenstein, Aurora, Colorado, for Defendants-Appellees and Cross-Appellants WYSE Financial Services, Inc. and Irvin Borenstein.
    Overton, Babiarz & Associates, P.C., A.L. Overton, Mark J. Overton, Englewood, Colorado, for Defendant-Appellee and Cross-Appellant Real America Ventures, LLC.
   Opinion by

Chief Judge HUME.

In this dispute concerning the purchaser at a foreclosure sale and the assignee of a junior judgment lien, plaintiff, National Real Estate Investment, LLC (assignee), appeals the summary judgment in favor of defendants, WYSE Financial Services, Inc. (assignor); Irvin Borenstein (assignor's attorney); Marilyn C. Green, in her capacity as Douglas County Public Trustee; and Real-America Ventures, LLC (purchaser). Defendants, other than Green, cross-appeal the trial court's order denying attorney fees pursuant to C.R.C.P. 11 and § 18-17-102, C.R.S. 2001. We reverse and remand.

Certain real property was subject to a first deed of trust and was also encumbered by a junior judgment lien against the property in favor of assignor. The holder of the deed of trust foreclosed, and the Douglas County Public Trustee sold the property to purchaser at a foreclosure sale and issued a certificate of purchase. The owner did not redeem the property during the period provided by § 38-38-3802, C.R.S.2001, which expired on June 5, 2000.

Assignor assigned the judgment lien to assignee on June 5, 2000, which assignment was promptly recorded. Assignee filed a notice of intent to redeem the property that same day. On June 8, 2000, assignee tendered to the trustee the redemption funds for the property in the approximate amount of $405,000, and the trustee issued a certificate of redemption. Assignee did not file a substitution of parties or counsel after obtaining the assignment, and assignor's attorney remained the attorney of record. The certificate of redemption was recorded on June 12, 2000, before assignee's redemption period expired on June 15, 2000.

On June 14, 2000, purchaser requested that the county court accept payment in satisfaction of assignor's judgment. The court refused to accept the tender and directed purchaser to tender the funds to the attorney of record for the judgment creditor of record, assignor. The attorney accepted the funds and executed a satisfaction of judgment on behalf of assignor on June 15, 2000. Purchaser filed an acknowledgment of satisfaction of judgment with the county court and recorded the certificate of satisfaction with the public trustee that same day.

The public trustee refused to issue a deed after assignee's redemption because of the conflicting demands made upon her.

Assignee filed a motion to vacate the satisfaction of judgment with the county court, which was denied. Assignee did not appeal that denial, but filed an independent action with the district court, again seeking to vacate the satisfaction of judgment, to require the public trustee to issue a public trustee's deed to assignee, and to recover damages against defendants on various grounds.

The district court denied defendants' motion for summary judgment, holding that the judgment lien was not effectively discharged by tender of payment to the attorney of record. Later, the district court granted summary judgment in favor of defendants, holding that the judgment was satisfied by the tender, without acceptance, of the funds to the county court. The district court held that the judgment lien was satisfied prior to the expiration of assignee's redemption period and therefore extinguished assignee's right to redeem.

I.

Assignee contends that the district court erred by holding that purchaser extinguished assignee’s right to redeem by satisfying the judgment through the tender of funds to the county court, without acceptance and deposit into the court registry. We agree.

Appellate review of a summary judgment is de novo. See Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, 901 P.2d 1251 (Colo.1995).

A debtor or debtor’s agent has the legal right to pay the judgment and thereby prevent a redemption by the assignee of a judgment. See Piute v. Schick, 101 Colo. 159, 71 P.2d 802 (1937); Craft v. Storey, 942 P.2d 1211 (Colo.App.1996); Osborn Hardware Co. v. Colorado Corp., 32 Colo.App. 254, 510 P.2d 461 (1973).

In Kellum v. RE Services, LLC, 30 P.3d 875 (Colo.App.2001), and Davis Manufacturing & Supply Co. v. Coonskin Properties, Inc., 646 P.2d 940 (Colo.App.1982), other divisions of this court have held that the holder of a certificate of purchase on a foreclosure sale does not have the right to prevent a judgment lien holder from redeeming by paying the amount of the lien. Those divisions held that the holder of the certificate of purchase acquires only the alternative rights to receive the redemption money when tendered, if another lien holder redeems, or a deed for the property after the time for redemption has expired, if no other superior right holder has intervened.

Section 38-38-304(3), C.R.S.2001, states that “[i]f redemption is made by a lienor, his certificate of redemption, duly recorded, operates as an assignment to him of the estate and interest acquired by the purchaser at the sale, subject, however, to the rights of persons who may be entitled subsequently to redeem.”

Thus, here, purchaser’s rights and interest in the property were assigned to assignee by operation of law immediately upon assignee’s recording the certificate of redemption on June 12, 2000.

Purchaser argues that pursuant to § 38-38-302(2), C.R.S.2001, a certificate of redemption may be issued only after the expiration of the redemption period. Purchaser contends that consequently the satisfaction of judgment extinguished assignee’s redemption rights because the certificate of redemption was executed and delivered in violation of the statute and therefore was a nullity. We disagree.

The requirement of § 38-38-302(2) that a certificate of redemption be issued only after the expiration of the proper redemption period contemplated by § 38-38-302 is inapplicable to judgment lienors. Section 38-38-302(1), C.R.S.2001, expressly reserves the right of redemption under that section to only “the owner of the property, or any other person liable after the foreclosure sale for the deficiency.” Thus, because the limitation on the execution and delivery of a certificate of redemption under § 38-38-302(2) applies only to persons redeeming “under this section,” it applies to only those persons contemplated under § 38-38-302(1), that is, owners and other persons liable for deficiencies after the foreclosure sale.

By contrast, § 38-38-303, C.R.S.2001, entitled “Time of redemption by lienor,” applies to lienors and expressly addresses the circumstance in which no party redeems within the redemption period contemplated by § 38-38-302, and subsequent lienors choose to redeem. Unlike § 38-38-302, § 38-38-303 contains no limitation on when the certificate of redemption may be issued.

In Craft v. Storey, supra, the division noted that nothing in the foreclosure statutes requires the public trustee to issue a certificate of redemption immediately upon tender of the lienor’s redemption amount. Similarly, unlike § 38-38-302(2), nothing in § 38-38-303 precludes the public trustee from issuing a certificate of redemption to a redeeming lienor immediately upon tender of the funds. Had the General Assembly intended to delay the execution and delivery of the certificate where lienors redeem, it could easily have inserted that requirement into § 38-38-303, as it did in § 38-38-302(2).

Defendants' reliance on Croft v. Storey, supra, is misplaced. Craft v. Storey did not address whether a foreclosure sale purchaser could satisfy a judgment lien and extinguish the judgment lienor's right to redeem after the issuance of a certificate of redemption in favor of the judgment lienor. In that case, no certificate of redemption had been issued, so there was no need to address the effect of § 38-38-804(8) in such a cireumstance.

Thus, once a lienor is issued a certificate of redemption, a purchaser at a foreclosure sale who is not the debtor is precluded from affecting the lienor's redemption rights. The purchaser is entitled only to recover the redemption funds. See §§ 88-38-804(8), 38-38-302(2) ("The public trustee or sheriff shall forthwith pay said [redemption] money to the holder of the certificate of purchase.").

Purchaser could not extinguish assignee's right to redeem after the issuance of a certificate of redemption, see Kellum v. RE Services, LLC, supra. - Assignee's redemption was subject only to the rights of persons subsequently entitled to redeem, see § 88-38-304(8). Because no other persons were subsequently entitled to redeem in this case, title to the property vested in assignee at the end of the redemption period on June 15, 2000. See § 88-38-501, C.R.S.2001. The public trustee is thus required to execute and deliver to assignee a deed confirming the transfer of title to the property.

IL.

Defendants argue that assignee's action in the district court was barred by the principles of res judicata and collateral estop-pel. We disagree.

Collateral estoppel bars relitigation of an issue previously litigated in a separate action if (1) the issue precluded is identical to an issue actually litigated and necessarily adjudicated in a prior proceeding; (2) the party against whom estoppel is sought was a party to, or in privity with a party to, the prior proceeding; (8) there was a final judgment on the merits in the prior proceeding; and (4) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding. See Sunmy Acres Villa, Inc. v. Cooper, 25 P.3d 44 (Colo.2001); Michaelson v. Michaelon, 884 P.2d 695 (Colo.1994).

The county court denied assignee's initial motion to vacate the satisfaction of judgment because it lacked jurisdiction over the subject matter, and it indicated that further action on the matter would have to proceed pursuant to C.R.C.P. 105. When a court refuses to adjudicate a dispute because of a lack of subject matter jurisdiction, there has been no actual, full, and fair litigation and no necessary adjudication of any substantive issue other than the issue of the court's jurisdiction. Assignee's independent action in the district court therefore was not barred by collateral estoppel.

IIL

In light of our decision, we affirm the trial court's denial of defendants' claims for attorney fees and deny relief on defendants' cross-appeal.

The judgment in favor of defendants is reversed, and the case is remanded with directions that the trial court (1) order the Douglas County Public Trustee to execute and deliver to plaintiff a deed confirming the transfer of title to the property to plaintiff and (2) consider plaintiffs claims for damages against defendants.

Judge NEY and Judge DAILEY concur.


author: Judge NEY.

text:
    In the Matter of the ESTATE OF John G. FALLER, Deceased. Iris L. Fisher, Trustee, Petitioner-Appellee, v. Colorado Department of Health Care Policy and Financing, Respondent-Appellant.
    No. 01CA0110.
    Colorado Court of Appeals, Div. IV.
    July 18, 2002.

      Certiorari Denied April 14, 2003.

    Ridgway, Romeo & Vincent, Richard B. Vincent, Renee Ezer, Louisville, Colorado, for Petitioner-Appellee.
    Ken Salazar, Attorney General, Ann Hause, Assistant Attorney General, Denver, Colorado, for Respondent-Appellant.

       Chief Justice MULLARKEY would grant as to the following issue:
      Whether an incapacitated surviving spouse's interest in a discretionary, statutory elective share trust established for her benefit under C.R.S. 15-11-206(2) is property under Colorado law, at the time the trust is funded or after it has been established, and therefore, is an available asset for purposes of determining her Medicaid eligibility.

   Opinion by

Judge NEY.

The Colorado Department of Health Care Policy and Financing (CDHCP & F) appeals from the Denver Probate Court's order establishing an elective-share trust for the benefit of Ruby Faller, the surviving spouse of the decedent, John G. Faller. We reverse.

In 2000, petitioner, Iris L. Fisher, filed a Petition for Elective-Share and Allowances on surviving spouse's behalf, requesting that any award of assets to the surviving spouse from the decedent's estate be placed in trust. Additionally, the petitioner requested that distributions from the trust be restricted to maintain the surviving spouse's eligibility for benefits under the Colorado Medicaid Program.

The probate court granted the petition. The court determined that the surviving spouse's elective share and allowances of the decedent's estate was $96,183.56. The court then placed these funds in a trust, as required by § 15-11-206(2), C.R.S8.2001, and further required that the assets "must be distributed in such a manner as to protect [surviving spouse's] eligibility for Medicaid benefits." The court also ruled that the assets in the trust were not the property of the surviving spouse because the trust was funded with the decedent's property, and thus it was not available to pay for the costs of her care that are otherwise provided for by Medicaid.

On appeal, CDHCP & F asserts that the assets in the elective share trust created here are "available assets" to be used to determine Medicaid eligibility, and it contends that the probate court thus erred in requiring that the trust be distributed in such a manner as to protect the surviving spouse's eligibility for Medicaid benefits. We agree.

The Colorado General Assembly has established three different types of trusts for the specific purpose of establishing or maintaining income eligibility for nursing home care or home- and community-based services: income trusts, § 15-14-412.7, C.R.8.2001; disability trusts, § 15-14-412.8, C.R.S.2001; and pooled trusts, § 15-14-412.9, C.R.S.2001. See Keith v. Rizzuto, 212 F.3d 1190 (10th Cir.2000).

Each of these trust provisions states that "no person is entitled to payment from the remainder of the trust until the state medical assistance agency has been fully reimbursed for the assistance rendered to the person for whom the trust was created." Sections 15-14-412.7(8)(b), - 15-14-412.82)(c), - 15-14-412.9(2)(c), C.R.S.2001.

The elective-share trust in this case was created pursuant to § 15-11-206(2), which provides:

If the election is exercised on behalf of a surviving spouse who is an incapacitated person, the court shall set aside that portion of the elective-share and supplemental elective-share amounts due from the decedent's probate estate ... and shall appoint a trustee to administer that property for the support of the surviving spouse.

The statute further requires:

Expenditures of income and principal may be made in the manner, when, and to the extent that the trustee determines suitable and proper for the surviving spouse's support, ... with regard to other support, income, and property of the surviving spouse and benefits of medical or other forms of assistance from any state or federal government or governmental agency for which the surviving spouse must qualify on the basis of need.

Section 15-11-206(2)(a), C.R.S.2001 (emphasis added).

Additionally, the statute provides that the assets remaining in the elective-share trust at the death of the surviving spouse will pass in accordance with the decedent's will or to the decedent's heirs under the laws of intestacy. See § 15-11-206(@)(c), C.R.8.2001.

Petitioner argues that the emphasized language in § 15-11-206(2)(a) was intended by the General Assembly to make elective-share trusts created for incapacitated surviving spouses available to maintain income eligibility for Medicaid benefits. In support of this contention, petitioner presented to the probate court an affidavit of a member of the editorial board of the National Conference of Commissioners on Uniform State Laws, which was responsible for drafting the related provision in the Uniform Probate Code. The affiant explained the intent of the legislature in enacting the code. The probate court, relying on this affidavit, found that when the General Assembly adopted § 15-11-206, its specific intent was that the "elected amount [put into trust] would be exempt from the Medicaid formula."

Additionally, on appeal, petitioner argues that the elective-share trust is funded with assets that are not owned by either the surviving spouse or the decedent because the remainder of the trust will pass to the decedent's heirs pursuant to § 15-11-206(2)(c). Thus, she asserts that the trust assets are not actually available to the incapacitated surviving spouse, for the purpose of determining her Medicaid eligibility. Thus, she relies on 42 U.S.C. §§ 1896a(a)(17)(B), 1396p(e)(1) (defining "assets" as including "all income and resources of the individual and of the individual's spouse"), and 1396p(d)(2)(C) and (8)(B) (related to trust assets).

However, § 15-14-412.6(@2), C.R.S.2001, limits the types of trusts that may be used to establish or maintain Medicaid eligibility:

Notwithstanding any statutory provision to the contrary, a court shall not authorize, direct, or ratify any trust established by an individual that has the effect of qualifying or purports to qualify the trust beneficiary for public assistance unless the trust meets the criteria set forth in this section, see-tions 15-14-412.7 to 15-14-412.9, and any rule adopted by the medical services board pursuant to section 26-4-506.6, C.R.S.

This provision specifically prohibits the authorization of a trust that has the effect of qualifying the trust beneficiary, here, the incapacitated surviving spouse, for public assistance unless it meets the criteria set forth in §§ 15-14-412.7 (the income trust), 15-14-412.8 (the disability trust), or § 15-14-412.9 (the pooled trust). See also Colorado Dep't of Health Care Policy & Financing v. Estate of Roberts, 18 P.3d 813 (Colo.App.2000).

The elective-share trust at issue does not meet the criteria set forth in §§ 15-14-412.7 to 15-14-412.9, as required by § 15-14-412.6(2). Specifically the elective-share does not dispose of the remainder of the trust. Furthermore, § 15-14-412.6(2) does not allow for elective-share trusts for the purpose of maintaining public assistance eligibility, including Medicaid. See also § 38-10-111.5, C.R.9.2001.

Petitioner asserts that § 15-14-412.6(2) is not applicable to an elective-share trust because it is not a "trust established by an individual." Petitioner argues that the elective-share assets used to fund the trust here came from the decedent's heirs. Moreover, she also argues that the surviving spouse cannot be deemed to own or be entitled to the assets of the elective-share trust, given the restrictive nature of the trust as required by the provisions of § 15-11-206(2), along with § 15-14-409.6(1)(e), C.R.S.2001 (adopting the definition for "trust established by an individual" as stated in 42 U.S.C. § 18396p(d)@2)).

We are not persuaded by these arguments. As discussed above, the statute creating the elective-share trust, § 15-11-206(2), is limited by § 15-14-412.6(2). The language in § 15-11-206(2) concerning trusts "established by an individual" does not exclude a trust funded by an incapacitated surviving spouse's elective share.

We are not persuaded by petitioner's contention that § 15-14-412.6(2) is inapplicable to testamentary trusts or post-eligibility transfers by a community spouse. Petitioner's argument is based on 42 U.S.C. § 1396p(d)(2)(A), defining such a trust as, inter alia, a trust established other than by will by an individual, the individual's spouse, or a court. However, under the Colorado statutory scheme, no allowance has been made for testamentary trusts or post-eligibility transfers. To the contrary, the language of § 15-14-412.6(2) clearly provides that a trust cannot qualify its beneficiary for public assistance unless it meets the criteria set forth in §§ 15-14-412.7 or 15-14-412.8, and 15-14-412.9. ~

Thus, because § 15-14-412.6(2) prohibits any trust that has been "established by an individual that has the effect of qualifying or purports to qualify the trust beneficiary for public assistance," and the statute does not except from this prohibition elective-share trusts created pursuant to § 15-11-206, we conclude that the court erred in attempting to shield the assets of the trust here for the purpose of determining Medicaid eligibility. See § 15-14-412.6(a), C.R.9.2001; see also 42 U.S.C. § 1896p(e)(1).

Petitioner additionally relies upon Skindzier v. Commissioner of Social Services, 258 Conn. 642, 784 A.2d 323 (2001), to support her position. However, we conclude Skindsier is factually distinguishable from the present case. Skindzier dealt with disqualifying testamentary transfers; here, we are concerned with an individual who has petitioned for the surviving spouse's elective share.

Because we have determined that the trial court erred, we do not reach CDHCP & F's contention, raised for the first time on appeal, that petitioner failed to exhaust her administrative remedies.

The order is reversed, and the case is remanded for further proceedings consistent with this opinion.

Judge ROTHENBERG and Judge VOGT concur.