author: Judge NIETO.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Richard Burton BAUER, Defendant-Appellant.
    No. 02CA0600.
    Colorado Court of Appeals, Div. IV.
    July 3, 2003.
    Certiorari Denied Dec. 8, 2003.

      Ken Salazar, Attorney General, Anthony J. Navarro, Assistant Attorney General, Denver, Colorado, for Plaintiff Appellee.
    Miller & Steiert, P.C., Andrew J. Conti-guglia, Littleton, Colorado, for Defendant Appellant.

       Justice HOBBS and Justice MARTINEZ would grant as to the following issue:

   Opinion by

Judge NIETO.

Defendant, Richard Burton Bauer, appeals the judgment of conviction entered after a trial to the court finding him guilty of twenty counts of criminal impersonation. We affirm.

Defendant was admitted to the practice of law in Colorado in 1966. In 1999, under C.R.C.P. 251.8, he was immediately suspended from the practice of law pending resolution of charges that he had violated the Colorado Rules of Professional Conduct. Defendant filed an affidavit with the supreme court, affirming that he had complied with the order of suspension and the requirements of C.R.C.P. 251.28, which includes a prohibition against accepting any new retainer or employment as an attorney in any new case or legal matter. See C.R.C.P. 251.28(a), (d).

However, defendant maintained his law office and continued to represent clients after his license to practice law had been suspended, without informing the clients of that fact. He also charged fees and accepted payment from these clients for the legal work he performed.

The Attorney Regulation Counsel issued a contempt citation to defendant for his continued practice of law in violation of the suspension order. In re Bauer, 30 P.3d 185 (Colo.2001). Nonetheless, defendant continued to represent clients.

Defendant was subsequently charged with twenty counts of criminal impersonation, a class six felony under § 18 — 5—113(l)(e), (2), C.R.S.2002. The charges against defendant alleged that he had knowingly assumed the false capacity of an attorney licensed to practice law in the State of Colorado. After a trial to the court, defendant was found guilty on all counts and sentenced to two years probation, ninety days in county jail, and payment of restitution.

Defendant’s sole contention on appeal is that the evidence does not support the charges as a matter of law. Specifically, he argues that an attorney who continues to practice law after his license has been suspended has not assumed a false capacity, as prohibited by § 18 — 5—113(l)(e), because any misrepresentation went to the status of his license to practice law and not to his capacity as an attorney. We disagree.

Section 18 — 5—113(l)(e) provides: “A person commits criminal impersonation if he knowingly assumes a false or fictitious identity or capacity, and in such identity or capacity he ... [d]oes any other act with intent to unlawfully gain a benefit for himself or another or to injure or defraud another” (emphasis added).

When interpreting a statute, our primary responsibility is to determine the intent of the General Assembly. Martin v. People, 27 P.3d 846, 851 (Colo.2001). Legislative intent should be determined from the plain and ordinary meaning of the statutory language whenever possible. Mason v. People, 932 P.2d 1377, 1378 (Colo.1997); People v. Vinson, 42 P.3d 86, 87 (Colo.App.2002). If the statutory language unambiguously sets forth the legislative purpose, we need not apply additional rules of statutory construction to determine the statute’s meaning. See Martin v. People, supra.

Here, the term “capacity” is not defined in the statute. However, one of the common meanings of “capacity” is “legal qualification, competency, power, or fitness.” Webster’s Third New International Dictionary 330 (1986). “Capacity” is also defined as “[t]he role in which one performs an act.” Black’s Law Dictionary 199 (7th ed.1999).

Despite defendant’s assertion that his suspension went only to the status of his license, we nevertheless conclude that his conduct in continuing to represent himself as an attorney and performing legal work when he was aware that he had no valid license to do so amounts to the assumption of a false or fictitious capacity for purposes of the criminal impersonation statute.

Our research has not disclosed any Colorado case directly on point. Nor are we convinced by defendant’s argument that People v. Jones, 841 P.2d 372 (Colo.App.1992), supports his position here. In Jones, a division of this court concluded that the use of an incorrect Social Security number on a loan application, without more, did not amount to the assumption of a false or fictitious identity that would sustain a conviction for false impersonation.

However, the division in Jones focused on the identity component of the criminal impersonation statute, not on the capacity element at issue here. Indeed, the division specifically cited People v. Gonzales, 188 Colo. 272, 534 P.2d 626 (1975), in which the defendant used his real name to obtain a money order made out to another person by falsely representing that he was that other person’s husband. The Jones division concluded that “irrespective of whether [Gonzales] assumed another identity in that instance, it is clear that he assumed a false ‘capacity,’ which the statute also expressly prohibits.” People v. Jones, supra, 841 P.2d at 374.

A license to practice law is statutorily required in this state. Any person representing that he or she is an attorney while lacking a valid license can be punished for contempt of the supreme court for the unauthorized practice of law. See §§ 12-5-101, 12-5-112, C.R.S.2002; Binkley v. People, 716 P.2d 1111, 1114 (Colo.l986)(“law-yer” refers to a person who, having been licensed to practice law in Colorado, can appear on behalf of a party in court and practice as an attorney according to the laws and customs of the State of Colorado during good behavior).

We reject defendant’s position that one has the capacity to act as an attorney without holding a current and active license to do so. In our view, possessing the knowledge and skill to perform the functions of an attorney is not the equivalent of the capacity to act as an attorney. “No person shall be permitted to practice as an attorney- or counselor-at-law ... without having previously obtained a license for that purpose from the supreme court.” Section 12-5-101.

Once defendant’s license was suspended, he no longer had the legal qualifications to act in the capacity of an attorney. He was not allowed to represent clients or appear before the courts of this state. See C.R.C.P. 251.28.

Thus, by continuing to practice and holding himself out to the public as an attorney without disclosing the suspension of his license, defendant assumed the false capacity of a licensed attorney. While defendant argues that “false or fictitious ... capacity” refers only to persons who have never obtained a law degree or license, the plain meaning of the term “capacity” does not support such a restrictive reading.

Moreover, to be found guilty of criminal impersonation, one not only must assume a false capacity, but also must have the intent to gain a benefit unlawfully. Here, defendant billed clients and received payment for legal work that he was not licensed to perform. Under these circumstances, defendant’s receipt of legal fees was unlawful. See § 12-5-115, C.R.S.2002. Thus, the requirements of the statute were met.

We also reject defendant’s contention that his unlicensed practice of law was subject only to the disciplinary powers of the supreme court. Conduct that violates the Rules of Professional Conduct may also violate criminal statutes. See People v. Buckles, 167 Colo. 64, 453 P.2d 404 (1968)(recognizing that conduct can result in both criminal and attorney discipline sanctions); People v. Howard, 147 Colo. 501, 364 P.2d 380 (1961)(drawing distinction between attorney disciplinary proceedings and criminal or civil actions).

Therefore, the judgment is affirmed.

Chief Judge DAVIDSON and Judge GRAHAM concur.


source: Caselaw Access Project

author: Judge NEY.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Daniel P. YASCAVAGE, Defendant-Appellant.
    No. 01CA1437.
    Colorado Court of Appeals, Div. II.
    July 3, 2003.
    Cerrtiorari Denied Dec. 1, 2003.

      Ken Salazar, Attorney General, Patricia R. Van Horn, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Douglas D. Barnes, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge NEY.

Defendant, Daniel P. Yascavage, appeals the judgments entered on jury verdicts finding him guilty of harassment-stalking, two counts of violation of a restraining order, and one count of criminal solicitation. We affirm the convictions of harassment-stalking and violation of a restraining order and vacate the conviction of criminal solicitation.

Defendant and the victim were in a relationship from May 1999 to January 2000. After defendant ignored the victim’s requests to cease contacting her, the victim was first granted a temporary restraining order against defendant prohibiting any contact with her. This order was later made permanent. Defendant continued to contact the victim frequently by telephone and sent her a letter indicating that he would continue to try to resume their relationship. After these repeated contacts, he was arrested and charged with harassment-stalking and violation of a restraining order.

After defendant’s arrest, a second restraining order was issued prohibiting him from contacting the victim directly or indirectly. Defendant continued to contact the victim after entry of the second restraining order.

While in custody awaiting trial, defendant telephoned a friend from jail and attempted to persuade him to prevent the victim from attending the trial.

I.

Defendant contends that the portions of § 18-9-lll(4)(b)(III), C.R.S.2002, criminalizing contact with certain individuals that would cause a reasonable person to suffer “serious emotional distress” are unconstitutionally overbroad and vague. We disagree.

A.

Defendant for the first time on appeal contends that the relevant statutory section is unconstitutionally overbroad. We decline to reach this issue because it was not raised or argued by defendant in the trial court. See People v. Cagle, 751 P.2d 614 (Colo.1988).

B.

Defendant next contends that the relevant statutory section is unconstitutionally vague. We are not persuaded.

A statute is unconstitutionally vague if it does not give fair notice of the conduct prohibited and does not provide adequate standards to prevent arbitrary and discriminatory enforcement. A criminal statute must be sufficiently specific to provide guidance to individuals seeking to comply with the law and to law enforcement officers applying the statute. People v. Hickman, 988 P.2d 628 (Colo.1999).

Because a statute requires a jury to determine “reasonableness” does not make it too vague to afford a practical guide to acceptable behavior. People v. Prante, 177 Colo. 243, 493 P.2d 1083 (1972).

Here, the statute prohibits contact that inflicts “serious emotional distress” and provides an objective “reasonable person” standard to measure whether the emotional distress inflicted upon the victim was “serious.” Thus, it provides notice that conduct which would cause a reasonable person serious emotional distress is prohibited. Because the only uncertainty raised by the statute is whether the conduct would cause a reasonable person serious emotional distress, and the determination of “reasonableness” is a question for the jury, we therefore conclude that the statute is not unconstitutionally vague.

II.

Defendant contends that the evidence was insufficient to support his convictions. We agree in part.

We must determine whether, when taken as a whole and in the light most favorable to the prosecution, the evidence is sufficient to support a finding of guilt beyond a reasonable doubt on each specific conviction. In applying this standard, 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).

A.

Defendant first contends that the evidence was insufficient to show that he knew his behavior would result in serious emotional distress in a reasonable person. We disagree.

Defendant mischaracterizes the mental state that is required for a violation of § 18-9-lll(4)(b)(III), which provides, in relevant part, that a person commits harassment-stalking if “such person knowingly ... [r]e-peatedly follows, approaches, contacts, places under surveillance, or makes any form of communication with another person ... in a manner that would cause a reasonable person to suffer serious emotional distress.”

A defendant does not need to know that his or her conduct would cause a reasonable person serious emotional distress. This reading of the statute would impart a nonexistent requirement that the defendant must intend to cause serious emotional distress. Instead, the defendant only must be aware of his or her conduct. The result of that conduct is evaluated under an objective standard to which his or her specific intent is irrelevant. See § 18-1-501(6), C.R.S.2002 (“person acts ‘knowingly’ ... with respect to conduct ... described by a statute defining an offense when he is aware that his conduct is of such nature”).

A defendant’s mental state may be inferred from his or her conduct and other evidence. See Miller v. Dist. Court, 641 P.2d 966 (Colo.1982).

Here, evidence was presented that defendant knew that the victim had sought and obtained a restraining order against him. Evidence was also admitted that defendant called the victim numerous times and stated that he would never stop trying to resume his relationship with her. Based on this evidence, we conclude that the jury could reasonably infer that defendant knew that he engaged in such conduct.

B.

Defendant next asserts that the evidence was insufficient to show that he knowingly violated the restraining order because he was only served with a copy of the temporary restraining order and not the permanent restraining order. We disagree.

Here, the record reflects that defendant admitted that he knew he was violating the restraining orders when he made contact with the victim. Therefore, we conclude sufficient evidence was presented for the jury to convict him of violating a restraining order.

C.

Defendant contends that the evidence was insufficient to support his conviction of criminal solicitation to tamper with witness. We agree.

Section 18-8-707, C.R.S.2002, provides, in relevant part, that

[a] person commits tampering with a witness or victim if he intentionally attempts without bribery or threats to induce a witness or victim or a person he believes is to be called to testify as a witness or victim in any official proceeding or who may be called to testify as a witness to or victim of any crime to ... [a]bsent himself from any official proceeding to which he has been legally summoned.

(Emphasis added.)

Here, the trial court instructed the jury in accordance with § 18-8-707 and also with § 18-2-301, C.R.S.2002 (defining criminal solicitation). Thus, to find defendant guilty of this charge the jury must have received evidence that he attempted to have the victim absent herself from an official proceeding to which she had been legally summoned.

The prosecution relies on the victim’s presence at trial as evidence on which the jury could conclude that she was legally summoned to appear at an official proceeding. However, even when viewed in the light most favorable to the prosecution, the mere presence of the victim at trial does not permit the jury to conclude that she was legally summoned to appear at trial. Furthermore, the information, which lists the victim as a potential witness, does not indicate that she was legally summoned and, in any event, was not admitted as evidence. Accordingly, no evidence was presented to the jury that the victim had, in fact, been legally summoned to appear at trial, and defendant’s conviction for criminal solicitation must be vacated.

We do not address the issue whether the witness must already be subject of legal process at the time of the tampering. It was not raised by the parties, nor do we find any evidence in the record of any legal summons, either before or after defendant’s actions.

III.

Defendant contends that the trial court erred in excluding evidence of the victim’s past drug and alcohol use. We disagree.

A trial court has wide latitude to place reasonable limits on cross-examination. To show that a trial court abused its discretion, a party must show that the court’s decision was manifestly arbitrary, unreasonable, and unfair. People v. Gholston, 26 P.3d 1 (Colo.App.2000).

Here, defense counsel questioned the victim about her prior drug and alcohol use and its effect on her mental health. Upon objection, the trial court struck defense counsel’s question and the victim’s negative answer as irrelevant.

Defendant now argues that this evidence was relevant to the issue of the victim’s mental health. However, defendant provides no rationale connecting the victim’s alleged past drug and alcohol use to the emotional distress she suffered as a result of defendant’s action. Hence, we are unconvinced that this restriction on cross-examination was manifestly arbitrary, unreasonable, and unfair.

Accordingly, we cannot conclude that the trial court abused its discretion.

IV.

Defendant contends that the trial court erred in denying his motion to dismiss because of a violation of his speedy trial rights. We again disagree.

A speedy trial deadline can be extended by a trial court through the granting of a continuance if the delay is chargeable to the defendant. The delay is chargeable to the defendant if it was caused by his or her affirmative act, occurred with his or her express consent, or involved other affirmative conduct evincing consent. People v. Scales, 763 P.2d 1045 (Colo.1988).

The decision to grant a continuance is a matter within the sound discretion of the trial court, and its decision will not be overturned absent an abuse of discretion. People v. Scales, stvpra.

Here, the trial court found that defendant insisted on new counsel, and the change of counsel caused the delay. This finding is supported by defendant’s in-court statements. Accordingly, the continuance was properly charged to defendant, the speedy trial deadline was properly extended, and defendant’s speedy trial rights were not violated.

V.

Defendant contends that the trial court erred in refusing to hear his motion to dismiss trial counsel on grounds of ineffective assistance. We are not persuaded.

A defendant’s motion to discharge an attorney is within the sound discretion of the trial court, and its ruling will not be disturbed on review in the absence of a clear abuse of discretion. People v. Apodaca, 998 P.2d 25 (Colo.App.1999).

At the February 28, 2000, hearing, the trial court refused to hear the pro se motions filed by defendant when he was represented by counsel. It is unclear from the record whether the trial court was aware of the proposed motion asserting that defense counsel was ineffective. However, the record indicates that during the trial, the court considered defendant’s assertion that his court-appointed counsel was ineffective and found that he was not. As this finding is supported by the record, we discern no error.

The judgments of conviction of harassment-stalking and violation of a restraining order are affirmed. The judgment of conviction of criminal solicitation is vacated.

Judge CASEBOLT and Judge WEBB concur.


text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Tho NGUYEN, Defendant-Appellant.
    No. 02CA0293.
    Colorado Court of Appeals, Div. II.
    Aug. 28, 2003.
    Rehearing Denied Oct. 16, 2003.

      Ken Salazar, Attorney General, John T. Bryan, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee. •
    Tho Nguyen, Pro Se.
   Opinion by

Judge NEY.

Defendant, Tho Nguyen, appeals the trial court’s order denying his Crim. P. 35(c) motion asserting that his guilty plea was invalid. We vacate the order and remand the case for further proceedings.

Pursuant to a plea agreement, defendant pleaded guilty to second degree murder in exchange for the dismissal of the original charge of first degree murder. Prior to sentencing, defendant moved to withdraw his plea. Following a hearing, the court denied the motion, finding that defendant had presented no fair and just reason to withdraw his plea. The court sentenced defendant to thirty-five years in the Department of Corrections (DOC).

Without appealing the conviction or sentence, defendant filed a “Motion to Withdraw Plea Due to Ineffective Assistance of Counsel.” The court denied the motion, finding that defendant had not alleged facts that if true would warrant relief.

Defendant filed a renewed postconviction motion asserting the same arguments as in his first postconviction motion. The court denied this motion as successive. Defendant’s appeal of the denial was subsequently dismissed at his request so that he could file a renewed motion for postconviction relief.

Defendant then filed a Crim. P. 35(c) motion seeking to withdraw his plea and asserting for the first time that neither the provi-dency court nor defense counsel had fully informed him of the consequences of a guilty plea on his immigration status. He asserted that the court, by its statement that his guilty plea should have no affect on his status in this country, led him erroneously to believe his conviction would not affect his immigration status. He further asserted that, contrary to the court’s statement, he was now facing a deportation hearing, and had he known he could be deported he would not have entered a guilty plea, but would have gone to trial. The court denied this motion as time barred and found that defendant had been adequately advised. Specifically, the court found that the provideney court’s statement was qualified, which left open the possibility of immigration consequences.

Defendant contends that the trial court erred in denying his motion without a hearing. We agree.

Initially, we note that, contrary to the trial court’s finding, defendant’s motion was not time barred. Defendant was convicted on July 27, 1998, when the sentence to the DOC was imposed. The motion from which defendant appeals was filed on July 26, 2001, within the three-year time limitation set forth under § 16-5-402, C.R.S.2002. Thus, defendant’s motion was timely, and the court erred in denying it on this ground.

Further, although the People argue that defendant’s claims concerning defense counsel’s performance are successive, because the trial court considered the issues on the merits, we elect to address the issues raised on appeal without considering or resolving the various procedural contentions upon which the People rely. See People v. Chambers, 900 P.2d 1249 (Colo.App.1994).

The trial court shall grant a prompt hearing on a Crim. P. 35(c) motion unless the motion, files, and record establish that the defendant is not entitled to relief. People v. Hartkemeyer, 843 P.2d 92 (Colo.App.1992). The record as a whole must demonstrate that the court adequately advised the defendant about to enter a guilty plea concerning the penalties associated with the plea. This advisement includes informing the defendant of the direct consequences of the plea. Crim. P. 11; see Craig v. People, 986 P.2d 951 (Colo.1999).

A defendant may seek review under Crim. P. 35 if he or she alleges that the conviction was unconstitutionally obtained. Crim. P. 35(c)(2)(I). A guilty plea must be voluntarily, knowingly, and intelligently made to be valid and constitutional. People v. Antonio-Antimo, 29 P.3d 298 (Colo.2000).

Accordingly, although defendant denominates his motion as a motion to withdraw his guilty plea, we read it as contending that his conviction was unconstitutionally obtained because his guilty plea was not knowingly and intelligently made.

Any alien who is convicted of an aggravated felony at any time after admission is deportable. 8 U.S.C. § 1227(a) (2) (A) (iii) (2003). Murder is an aggravated felony. 8 U.S.C. § 1101(a)(43)(A) (2003). And, a discretionary waiver of deportation is no longer available to offenders who have been convicted of aggravated felonies. 8 U.S.C. § 1229(b) (2003). Thus, defendant is considered deportable. See Rankine v. Reno, 319 F.3d 93 (2d Cir.2003)(defendant convicted of second degree murder is deportable under 8 U.S.C.A. § 1227(a)(2)(A)(iii)).

These statutes were in effect at the time of defendant’s plea. Defendant now asserts that deportation proceedings have been initiated against him.

The trial court is not required to advise a defendant sua sponte of potential federal deportation consequences of a guilty plea to a felony charge before accepting such plea. People v. Pozo, 746 P.2d 523 (Colo.1987). However, if the court affirmatively misinforms a defendant concerning collateral consequences and the defendant reasonably relies on such misrepresentation to his detriment, then the plea may be invalid. See People v. Wilbur, 890 P.2d 113 (Colo.1995)(trial court’s erroneous interpretation of plea agreement upon which defendant reasonably and detrimentally relied entitled defendant to specific performance of agreement as presented by the court); People v. Macrander, 756 P.2d 356 (Colo.1988)(in determining whether defendant’s interpretation of government’s promise was reasonable, focus is on the meaning a reasonable person would give to the language of the agreement); Daramy v. United States, 750 A.2d 552 (D.C.2000)(reversal required where court misstated current status of immigration law to defendant during providency hearing).

Here, defense counsel knew that defendant was an alien legally residing in this country and informed the court that defendant had lived here since 1977, when he was admitted to the United States from Vietnam under an amnesty program. The court responded, “This guilty plea should have no effect then upon your status in the country.” Nothing further was said concerning defendant’s immigration status.

Further, because defense counsel was aware of defendant’s immigration status, counsel should have investigated relevant law, informed defendant that his guilty plea could subject him to deportation proceedings, and alerted the court to its gratuitous, erroneous statement. See People v. Pozo, supra.

Defendant further asserted in his motion that the court’s statement led him to enter his plea and that if he had known that he could be deported, he would not have done so. If defendant entered his guilty plea under the mistaken assurance that his plea would not affect his status as a legal resident in this country, then his plea may not have been made knowingly, voluntarily, and intelligently. Therefore, because questions have been raised concerning the validity of defendant’s plea, the trial court erred in not holding a hearing on defendant’s claims.

Accordingly, the order is vacated, and the case is remanded for appointment of counsel and a hearing to determine whether defendant’s plea counsel was effective, whether the providency court misled defendant, and whether defendant relied on the court’s statement.

Judge CASEBOLT and Judge WEBB concur.


author: Judge WEBB.

text:
    Donald E. JENSEN and Margaret C. Jensen, Plaintiffs-Appellants and Cross-Appellees, v. Cynthia L. RUNTA, Gerald W. Runta, and Jason D. Runta, Defendants-Appellees and Cross-Appellants.
    No. 03CA0611.
    Colorado Court of Appeals, Div. A.
    Sept. 25, 2003.
    Brent K. Olsson Law Firm, P.C., Brent K. Olsson, Fort Collins, Colorado, for Plaintiffs-Appellants and Cross-Appellees.
    Montgomery, Kolodny, Amatuzio, & Dus-babek, L.L.P., Peter S. Dusbabek, Cara J. Stegemann, Fort Collins, Colorado, for Defendants-Appellees and Cross-Appellants.
   Opinion by

Judge WEBB.

We grant plaintiffs’ petition for rehearing and reinstate a portion of their appeal previously dismissed on defendants’ motion.

Plaintiffs, Donald E. and Margaret C. Jensen, commenced this action against defendants, Cynthia L., Gerald W., and Jason D. Runta, then- neighbors, seeking a permanent injunction from harassment and damages for extreme and outrageous conduct. Defendants filed counterclaims seeking injunctive relief under protective covenants against plaintiffs’ home-based business and damages for trespass, malicious prosecution, abuse of process, libel, and slander.

In pretrial briefs, plaintiffs sought attorney fees from defendants under § 13-17-102, C.R.S.2002. Following a bench trial, the court addressed the claims and counterclaims in its order of November 27, 2002. However, the November 27 order provided “each side to pay [its] own costs and fees.”

Fifteen days later, on December 12, 2002, plaintiffs filed an “Omnibus Motion: To Amend Order Pursuant to C.R.C.P. Rule 59(a)(4); For Judgment of Attorneys Fees and Costs Against Defendants; and for Judgment of Costs Against Larimer County Sheriffs Office.” As relevant here, the Omnibus Motion requested that the trial court reconsider its denial of attorney fees pursuant to § 13-17-102 and, for the first time, sought attorney fees under § 38-33.3-123(1), C.R.S.2002.

Seventy-five days later, on February 25, 2003, the trial court entered a written order on the Omnibus Motion. The trial court awarded attorney fees to plaintiffs under § 38-33.3-123(1) for defending the protective covenant counterclaim, but denied their claim for attorney fees under § 13-17-102.

Plaintiffs filed a notice of appeal on March 25, 2003, within forty-five days of the February 25 order, but almost four months after the November 27 order, seeking review of both orders. On April 8, 2003, defendants filed a notice of cross-appeal regarding the fee award under § 38-33.3-123(1).

A motions division of this court dismissed as untimely plaintiffs’ appeal from the trial court’s order of November 27, 2002, but allowed their appeal and defendants’ cross-appeal to proceed regarding the trial court’s order of February 25, 2003. Plaintiffs filed a petition for rehearing on the ground that their appeal from the November 27 order was timely.

The sole question before us is whether under C.R.C.P. 59 plaintiffs’ Omnibus Motion tolled the time for filing an appeal of the November 27 order. Under the particular circumstances of this case, we conclude that it did, and therefore the notice of appeal was timely as to this order.

If a party timely files a C.R.C.P. 59 motion, the trial court must rule on it within 60 days or it is deemed to be denied. C.R.C.P. 59(j). Hence, the period for filing the notice of appeal commences to run as to all parties from the date the trial court determines the motion or sixty days after the motion was filed, whichever occurs earlier. C.A.R. 4(a); C.R.C.P. 59(j)-(k).

Here, plaintiffs’ request for C.R.C.P. 59 relief as to denial of attorney fees under § 13-17-102 was deemed denied by operation of law on February 10, 2003. Therefore, the portion of the trial court’s February 25 order again denying attorney fees under § 13-17-102 is void. See Canton Oil Corp. v. Dist. Court, 731 P.2d 687 (Colo.1987).

Defendants argue that plaintiffs’ Omnibus Motion did not toll the running of the period for filing the notice of appeal, and hence the notice of appeal is untimely as to the November 27 order. Defendants rely on the line of cases following Baldwin v. Bright Mortgage Co., 757 P.2d 1072 (Colo.1988), and Budinich v. Becton Dickinson & Co., 486 U.S. 196, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988). We are not persuaded.

In Baldwin, following the analysis in Budi-nich, our supreme court held that a judgment on the merits is final and appealable, regardless of any unresolved attorney fees issues, unless the attorney fees represent an element of damages. As a result, the time for appealing such an award of attorney fees “is not in any way linked to the time for an appeal of the underlying case.” Daives Agency, Inc. v. Am. Prop. Mortgage, Inc., 804 P.2d 255, 257 (Colo.App.1990)(quoting Autorama Corp. v. Stewart, 802 F.2d 1284, 1286 (10th Cir.1986)).

Thus, where the trial court has granted attorney fees in its judgment on the merits, but has deferred ruling on the amount of the award, a separate timely notice of appeal to be filed on all issues related to attorney fees after the award is reduced to a sum certain. See M Life Ins. Co. v. Sapers & Wallack Ins. Agency, Inc., 40 P.3d 6, 15 (Colo.App.2001), overruled on other grounds by Pueblo Bancorporation v. Lindoe, Inc., 63 P.3d 353 (Colo.2003).

A trial court may also address a claim for attorney fees raised for the first time after judgment. Pagosa Lakes Prop. Owners Ass’n v. Caywood, 973 P.2d 698 (Colo.App.1998). However, a postjudgment motion for attorney fees is not a C.R.C.P. 59(e) motion, although it must comply with C.R.C.P. 121 § 1-22. Roa v. Miller, 784 P.2d 826 (Colo.App.1989); cf. Echols v. Parker, 909 F.2d 795 (5th Cir.1990).

Here, plaintiffs’ request for attorney fees under § 38-33.3-123(1) in the Omnibus Motion was a new request that could not be granted under C.R.C.P. 59. Thus, that portion of the motion did not toll the time for filing an appeal of the November 27 order.

However, plaintiffs’ Omnibus Motion also requested that the trial court reconsider its ruling denying plaintiffs’ previous request for attorney fees under § 13-17-102. Because the trial court had already denied that request in its November 27 order, plaintiffs could appropriately file a C.R.C.P. 59 motion directed at the denial. See Ramsey u Colonial Life Ins. Co., 12 F.3d 472, 477 (5th Cir.1994). Thus, the portion of the Omnibus Motion directed at denial of attorney fees under § 13-17-102 tolled the time for filing the notice of appeal as to all matters resolved by the November 27 order as provided in C.R.C.P. 59.

In sum, we hold that a timely C.R.C.P. 59 motion requesting reconsideration of the trial court’s completed post-trial ruling on an attorney fees issue — either a denial of attorney fees or a grant of attorneys fees that is reduced to a sum certain — will toll the time for filing the notice of appeal concerning all issues finally resolved by the court, as provided in C.R.C.P. 59 and C.A.R. 4(a). Because plaintiffs’ March 25, 2003, notice of appeal from the trial court’s November 27, 2002, order was filed within forty-five days of February 10, 2003, the date the C.R.C.P. 59 portion of the Omnibus Motion was deemed denied, it was timely filed as to that order.

Plaintiffs’ petition for rehearing is granted, and their appeal from the November 27, 2002, order is reinstated.

Chief Judge DAVIDSON and Judge ROY concur.


author: Chief Judge DAVIDSON.

text:
    Sig PATZER, individually, d/b/a Sig Patzer Construction, and Sig Patzer Construction, Inc., Plaintiffs-Appellees, v. CITY OF LOVELAND, a municipal corporation, Defendant-Appellant.
    No. 02CA1359.
    Colorado Court of Appeals, Div. IV.
    Sept. 25, 2003.

      Zak, Fox & Pehr, P.C., James J. Zak, Westminster, Colorado, for Plaintiffs-Appel-lees.
    Berg Hill Greenleaf & Ruscitti, LLP, Josh A. Marks, Boulder, Colorado; Hall & Evans, L.L.C., Melanie B. Lewis, Edmund M. Kennedy, Denver, Colorado, for Defendant-Appellant.

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

   Opinion by

Chief Judge DAVIDSON.

Defendant, the City of Loveland, appeals from that part of the trial court’s order denying its motion seeking dismissal, on governmental immunity grounds, of the breach of contract and promissory estoppel claims brought by plaintiffs, Sig Patzer d/b/a Sig Patzer Construction, and Sig Patzer Construction, Inc. We reverse and remand with directions.

This action concerns the City’s failure to issue a certificate of occupancy upon plaintiffs’ completion of a residence in accordance with a building permit the City had issued. Plaintiffs alleged that in refusing to issue the certificate of occupancy, the City improperly relied on a hydraulic report completed after the building permit had been issued. That report showed that a portion of the property encroached on the 100-year flood plain, and thus it varied from the report prepared by plaintiffs’ engineering firm that had been used to obtain the building permit.

Following negotiations among plaintiff, the City, and the engineering firm, the City agreed to rely on the engineering firm’s report and issued the certificate of occupancy.

Plaintiffs brought this action seeking as damages the costs they incurred as a result of being unable to market the property until the City issued the certificate of occupancy. The City moved to dismiss plaintiffs’ claims as barred by the Colorado Governmental Immunity Act (GIA), § 24-10-101, et seq., C.R.S.2002.

The trial court granted the City’s motion as to plaintiffs’ negligence claim, but denied it as to their breach of contract and promissory estoppel claims. The City then brought this appeal pursuant to § 24-10-108, C.R.S. 2002.

The City contends that plaintiffs’ claims for breach of contract and promissory estop-pel sound in tort and are therefore barred by the GIA. We agree with the City that the building permit does not support a contractual obligation or promise by the City to issue a certificate of occupancy and that plaintiffs’ claims thus are barred by the GIA.

Except as set forth in the GIA, “[a] public entity shall be immune from liability in all claims for injury which lie in tort or could lie in tort regardless of whether that may be the type of action or the form of relief chosen by the claimant.” Sections 24-10-106(1), 24-10-108, C.R.S.2002; City & County of Denver v. Desert Truck Sales, Inc., 837 P.2d 759 (Colo.1992). The GIA is not intended to apply to actions grounded in contract. See State Pers. Bd. v. Lloyd, 752 P.2d 559 (Colo.1988).

In evaluating a claim under the GIA, the form of the complaint is not determinative of whether the claim is based in tort or contract. Rather, the dispositive question is whether the claim is a tort claim or could be a tort claim for purposes of the GIA. In barring not only tort claims but also claims which could lie in tort, the GIA mandates close examination of the pleadings and undisputed evidence. Berg v. State Bd. of Agric., 919 P.2d 254 (Colo.1996). The court should look at the nature of the alleged injury and the relief sought, and examine whether the injury arises from the terms of a contract. CAMAS Colo., Inc. v. Bd. of County Comm’rs, 36 P.3d 135 (Colo.App.2001).

First, we disagree with plaintiffs that their claims sound in contract.

In their complaint, plaintiffs did not point to any specific contractual language upon which they based their breach of contract claim. Rather, they argued that the issuance of the building permit created a contractual obligation to issue a certificate of occupancy if plaintiffs met certain conditions for approval. We reject that argument.

A building permit is “a license granted by a government agency (esp[ecially] a municipality) for the construction of a new building or a substantial alteration of an existing structure.” Black’s Law Dictionary 189 (7th ed.1999). Generally, the legal interest conveyed by a license is “merely a personal privilege to do some particular act or series of acts,” and ordinarily, the license is revocable at the will of the licensor. Lehman v. Williamson, 35 Colo.App. 372, 375, 533 P.2d 63, 65 (1975).

Licenses are issued for a variety of purposes by state and local governments, including the regulation of businesses, professions, and particular uses of property. See, e.g., Hillside Cmty. Church v. Olson, 58 P.3d 1021 (Colo.2002)(height variance of structure); City of Colorado Springs v. 2354, Inc., 896 P.2d 272 (Colo.1995)(sexually oriented businesses); Mountain Med., Inc. v. City of Colorado Springs, 43 Colo.App. 391, 608 P.2d 821 (1979)(ambulance services); Kourlis v. Port, 18 P.3d 770 (Colo.App.2000)(animals living on real property); Leichliter v. State Liquor Licensing Auth., 9 P.3d 1153 (Colo.App.2000) (liquor licensing); Roundup Found., Inc. v. Bd. of Adjustment, 626 P.2d 1154 (Colo.App.1980)(group homes).

In Mountain Medical Inc. v. City of Colorado Springs, supra, a division of this court held that the city’s licensing and regulation of ambulance services did not create a contract between the city and the ambulance company such that the city was obligated to pay for services provided to individuals who failed to pay the ambulance company. “A license has none of the elements of a contract and does not confer an absolute right but a personal privilege to be exercised under existing restrictions and such as may thereafter be reasonably imposed.” Mountain Med., Inc. v. City of Colorado Springs, supra, 43 Colo.App. at 393, 608 P.2d at 823 (quoting Rosenblatt v. Cal. State Bd. of Pharmacy, 69 Cal.App.2d 69, 158 P.2d 199 (1945)). As the division noted: “A license merely ‘confers the right to do that which without the license would be unlawful.’ ” Mountain Med., Inc. v. City of Colorado Springs, supra, 43 Colo.App. at 393, 608 P.2d at 823 (quoting Antlers Athletic Ass’n v. Hartung, 85 Colo. 125, 274 P. 831 (1928)).

Similarly, the building permit here merely granted a revocable license authorizing construction. The purpose of the permit was to ensure that construction was undertaken in an approved manner. See Trevino & Gonzalez Co. v. R.F. Muller Co., 949 S.W.2d 39, 42 (Tex.App.1997). There was neither an agreement by the City to issue a certificate of occupancy once construction was completed, nor consideration to support any such agreement.

Indeed, that the permit was intended as a license, not a contract, is evidenced by its plain terms. The permit was issued with “agreement that all work will be done according to the conditions set forth in the [permit],” and that plaintiffs “understand[ ] and accept[] the conditions stated above for issuance of the building permits ” (emphasis added). Conversely, the permit contains no agreement, consideration, or promise that a certificate of occupancy would be issued if those conditions were met.

Moreover, the issuance of a building permit is an exercise of the City’s police powers, see Van Sickle v. Boyes, 797 P.2d 1267 (Colo.1990), which include, as relevant here, the regulation of flood control. See Morrison v. City of Aurora, 745 P.2d 1042 (Colo.App.1987). If the mere issuance of a building permit were to create a binding obligation to issue a certificate of occupancy, as plaintiffs argue, the City’s ability to protect the health, safety, and welfare of the public would be seriously hampered. See Van Sickle v. Boyes, supra (although a building permit can form the basis of a vested right, reliance on permit does not insulate permit holder from changes made under the police power for the protection of the public); see also King’s Mill Homeowners Ass’n v. City of Westminster, 192 Colo. 305, 557 P.2d 1186 (1976)(a municipality cannot contract away its police powers); Crossroads West L.L.C. v. Town of Parker, 929 P.2d 62 (Colo.App.1996)(same).

Cases from other jurisdictions that have considered the issue have similarly concluded that a typical building permit, such as the one here, does not create a contractual obligation between the city and the permittee. See, e.g., Vari-Build, Inc. v. City of Reno, 596 F.Supp. 673 (D.Nev.1984); Thomas Learning Ctr., Inc. v. McGuirk, 766 So.2d 161 (Ala.Civ.App.1998) (plurality opinion); Trevino & Gonzalez Co. v. R.F. Muller Co., supra.

Accordingly, we conclude that the issuance of the building permit did not constitute a contract between plaintiffs and the City, and therefore does not support their breach of contract claim.

II.

Plaintiffs next assert that the building permit supports a claim based on promissory estoppel. Again, we disagree.

Promissory estoppel is an extension of the basic contract principle that one who makes promises must be required to keep them. Bd. of County Comm’rs v. DeLozier, 917 P.2d 714 (Colo.1996). The elements of promissory estoppel are: (1) the promisor made a promise to the promisee; (2) the promisor should reasonably have expected that the promise would induce action or forbearance by the promisee; (3) the promisee in fact reasonably relied on the promise to the promisee’s detriment; and (4) the promise must be enforced to prevent injustice. Berg v. State Bd. of Agric., supra.

Whether a claim characterized as promissory estoppel is a contract or a tort claim is determined on a case-by-case basis, by examining the pleadings and the undisputed evidence. A claim that is based not on a promised performance in the future, but rather on an alleged misrepresentation of facts, is fundamentally a tort claim and barred by the GIA. Lehman v. City of Louisville, 857 P.2d 455 (Colo.App.1992).

Here, plaintiffs allege that the building permit implied a promise to issue a certificate of occupancy. As discussed, however, the permit, by its plain terms, contains no such promise. Even if we assume plaintiffs stated a claim for negligent misrepresentation regarding the acceptability of the initial engineering report, such a claim would sound in tort and is thus barred by the GIA because it does not fall within one of the statutory provisions waiving a public entity’s immunity from suit. See § 24-10-106(1).

The order is reversed as to plaintiffs’ claims for breach of contract and promissory estoppel, and the case is remanded to the trial court with directions to grant the City’s motion to dismiss these claims.

Judge GRAHAM and Judge STERN-BERG concur.


text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Todd S. ROBSON, Defendant-Appellee.
    No. 02CA1435.
    Colorado Court of Appeals, Div. IV.
    Sept. 25, 2003.

      James J. Peters, District Attorney, William W. Hood, III, Deputy District Attorney, Englewood, Colorado, for Plaintiff-Appellant.
    No Appearance for Defendanb-Appellee.

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

   Opinion by

Judge NIETO.

The prosecution appeals the judgment dismissing the charges against Todd S. Robson, defendant. We affirm.

Defendant was charged with two counts of sexual assault on a child, his infant daughter. Defendant moved to dismiss the charges, asserting that the prosecution relied exclusively on his confessions and had no independent corroborative evidence that the alleged offenses occurred.

In a written response to the motion, the prosecution asserted that the confessions were corroborated by evidence that defendant had a daughter and that on occasion she had been left alone in his care.

After hearing arguments on the motion, the trial court, relying on People in Interest of T.A.O., 36 P.3d 180 (Colo.App.2001), found that the prosecution’s evidence apart from the confessions would not establish the corpus delicti of the alleged offenses. The court then granted the motion, dismissed the charges, and discharged defendant. This appeal followed.

Colorado has long recognized that a conviction cannot be based upon the uncorroborated confession of a defendant. “[C]on-fessions made by a prisoner, unsupported by corroborating circumstances, are not, of themselves, sufficient to prove the corpus delicti. There should always be something more than a mere naked confession of one accused, to justify a verdict of guilty.” Dougherty v. People, 1 Colo. 514, 524 (1872).

In more recent times the supreme court has adhered to this doctrine. People v. Rankin, 191 Colo. 508, 510, 554 P.2d 1107, 1108 (1976)(“Where a confession is involved, the corpus delicti must be proved by evidence independent of the confession.”); People v. Smith, 182 Colo. 31, 33, 510 P.2d 893, 894 (1973)(“We have consistently held that a confession alone is not sufficient to establish the existence of a crime.”); Meredith v. People, 152 Colo. 69, 71, 380 P.2d 227, 227 (1963)(“The law is well settled ... that extrajudicial confession without corroboration is not sufficient to sustain a conviction.”).

It is also well settled in Colorado law that evidence of opportunity to commit the crime, standing alone, is not sufficient independent evidence to establish the corpus de-licti. Meredith v. People, supra; People in Interest of T.A.O., supra.

Here, the prosecution’s evidence, independent of the confessions, established only that defendant had an opportunity to commit the charged crimes. Accordingly, the trial court did not err by granting the motion to dismiss.

The prosecution argues that the adoption of the Colorado Rules of Evidence, specifically CRE 801(d)(2), superseded the corpus de-licti doctrine. We do not agree.

In the cases cited above, the supreme court has treated the doctrine as a substantive rule of law relating to the quantum of proof necessary to sustain a conviction. In each case, the defendant’s confession was received in evidence, and none of the cases even suggest that the trial court erred by admitting the confessions into evidence. Therefore, we conclude that the adoption of the Colorado Rules of Evidence relating to the admissibility of a defendant’s confession did not supersede the corpus delicti doctrine, which is a substantive rule of law.

The prosecution also argues that the traditional justifications for the corpus delicti doctrine do not apply in this case. This argument, in essence, urges a reversal or modification of the doctrine on public policy grounds. The authorities cited by the prosecution present sound arguments. See Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954); Thomas A. Mullen, Rule Without Reason: Requiring Independent Proof of the Corpus Delicti as a Condition of Admitting an Extrajudicial Confession, 27 U.S.F. L.Rev. 385 (1993); Maria Lisa Crisera, Reevaluation of the California Corpus Delicti Rule: A Response to the Invitation of Proposition 8, 78 Calif. L.Rev. 1571, 1572-73 (1990). However, we are bound by the rule as expressed by the Colorado Supreme Court, and we are not free to depart from this precedent.

The judgment is affirmed.

JUDGE GRAHAM and JUDGE RULAND concur.


text:
    In the Interest of K.M.B., a Child, Upon the Petition of Michael S. Schwamberger, Appellant, and Concerning Marcia R. Schwamberger and Sharon Griffith, Appellees.
    No. 02CA2038.
    Colorado Court of Appeals, Div. IV.
    Oct. 9, 2003.

      Loren J. Randall, Highlands Ranch, Colorado, for Appellant.
    Devra K. Carmichael, Parker, Colorado, for Appellee Marcia R. Schwamberger.
    Jeri S. Williams, Castle Rock, Colorado, for Appellee Sharon Griffith.
   Opinion by

Chief Judge DAVIDSON.

In this proceeding concerning the minor child, K.M.B., Michael S. Schwamberger (stepfather) appeals from the trial court’s dismissal of his petition for the allocation of parental responsibilities based upon the determination that he lacked standing. Stepfather also appeals from the trial court’s award of attorney fees to Marcia R. Schwamberger (mother) and Sharon Griffith (grandmother). We reverse and remand for further proceedings.

Stepfather separated from mother on April 1, 2000, and filed a petition for dissolution on June 14, 2001. He filed this separate action on April 11, 2002, alleging that he was a nonparent and that K.M.B. was not in the physical custody of one of her parents. As grounds for his request for allocation of parental responsibility, stepfather claimed that he was the psychological father of K.M.B. and that he had continued to visit her regularly and frequently at the same time and in the same manner that he exercised parenting time with the parties’ daughter. He requested that the court allocate parental rights, including parenting time, as appropriate to effectuate the best interests of K.M.B.

Mother and grandmother moved to dismiss stepfather’s petition, alleging that stepfather lacked standing because K.M.B. had not resided with him since the separation. They also informed the magistrate that both stepfather and mother had temporarily delegated guardianship of the parties’ daughter and K.M.B. to grandmother on March 10, 2001, for a period expiring on September 26, 2001, and that grandmother subsequently received an award of temporary custody of both children.

The magistrate found that stepfather failed to meet the threshold requirement of standing and dismissed his petition. Stepfather filed a timely motion to review, and the trial court upheld the dismissal. The trial court also imposed attorney fees against stepfather and his attorney. •

I.

Stepfather first contends that the court erred in determining that he lacked standing. We agree.

Stepfather filed his petition under § 14-10-123, C.R.S.2002, which governs the commencement of proceedings for the allocation of parental responsibilities and provides, in pertinent part,, as follows:

(1) A proceeding concerning the allocation of parental responsibilities is commenced in the district court or as otherwise provided by law:
(a) By a parent ... or
(b) By a person other than a parent, by filing a petition seeking the allocation of parental responsibilities for the child in the county where the child is permanently resident or where the child is found, but only if the child is not in the physical care of one of the child’s parents;
(c) By a person other than a parent who has had the physical care of a child for a period of six months or more, if such action is commenced within six months of the termination of such physical care; or
(d) By a parent or person other than a parent who has been granted custody of a child or who has been allocated parental responsibilities through a juvenile court order. ...

In dismissing the petition for lack of standing, the court relied upon § 14 — 10—123(l)(c). Stepfather argues that subparagraph (b) creates a basis for standing that is independent of subparagraph (c) and that, because it was undisputed that K.M.B. was in the care of her grandmother, he met the requirements of subparagraph (b). Thus, he contends, he was eligible to bring this action even though K.M.B. was not in his physical care. We conclude that he is correct based upon the plain language of the statute.

Our primary task in construing a statute is to determine and give effect to the intent of the General Assembly. In re Marriage of Long, 921 P.2d 67 (Colo.App.1996). Words and phrases should be given their plain and ordinary meaning. In re Marriage of Emerson, 77 P.3d 923 (Colo.App. No. 02CA1584, Aug. 14, 2003). A statute should also be interpreted to give consistent, harmonious, and sensible effect to all its parts. In re Marriage of Davisson, 797 P.2d 809 (Colo.App.1990).

If the language of a statute is clear and unambiguous, it must be applied as written, and the court need not resort to other rules of statutory construction. In re Interest of L.F., 56 P.3d 1249 (Colo.App.2002).

A division of this court has addressed the two provisions at issue, stating: “The former section permits the non-parent to commence the proceeding while the child is in the physical custody of the non-parent and the latter permits the proceeding to be commenced up to six months after physical custody has terminated.” In re Custody of A.D.C., 969 P.2d 708, 709 (Colo.App.1998). This reading of the statute presumes that the two subsections operate together and that a nonparent must comply with each to establish standing.

However, we find nothing within the plain language of either subsection (b) or (c) of the statute that requires the two subsections to be applied together or that engrafts the physical care requirement imposed in the latter subsection upon nonparents who seek standing under the former subsection.

To the contrary, by its terms, subsection (b) establishes that any nonparent has standing as long as the child is not in the physical care of a parent. Cf In re Custody of C.C.R.S., 872 P.2d 1337 (Colo.App.1993)(sub-section (b) adopts a liberalized view as to the standing of nonparents to commence and to participate in custody proceedings), aff'd, 892 P.2d 246 (Colo.1995). We note that § 14-10-123(l)(b) was adopted verbatim from section 401(d) of the Uniform Dissolution of Marriage Act, and courts of other jurisdictions that have adopted the Uniform Act read the provision the same way. See, e.g., In re Custody of R.R.K., 260 Mont. 191, 859 P.2d 998 (1993).

Subsection (c), which was adopted later and is not contained in the Uniform Act, implements the Colorado General Assembly’s recognition of “psychological parenting.” It gives standing only to those nonparents who have had physical care of the child for at least six months and who have commenced a proceeding for parental responsibility no more than six months after the child left their physical care. In re Custody of C.C.R.S., supra. Subsection (c) acknowledges the important attachments that can arise when the child has been in the physical care of a nonparent, as well as the possible attenuation of the parent-child bond that can occur under such circumstances. In re V.R.P.F., 939 P.2d 512 (Colo.App.1997).

The Supreme Court has held that a statute permitting any person to petition for visitation with a child living with a parent violated the substantive due process right of that parent to rear his or her children. Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Thus, subsection (c) appropriately restricts standing because it applies even when the child’s parents have retained some measure of caretaking responsibility. Limiting the class of nonpar-ents who may seek parental responsibilities to only those individuals who have had a recent or continuing role as a caretaker protects against undue interference with the parent-child relationship. See People in Interest of A.M.K., 68 P.3d 563 (Colo.App.2003)(natural parents have a fundamental liberty interest in the companionship, care, custody, and management of their children that gives rise to a presumption that the best interests of the child will be furthered by a fit natural parent).

Conversely, because standing may be acquired under subsection (b) only when a parent is no longer caring for the child, no such due process problem appears to be implicated. Furthermore, although a countervailing policy may exist against permitting an unlimited class of nonparents to seek parental responsibilities under subsection (b), such concern is outweighed by the “overriding policy of promoting the best interests of children.” See In re Custody of C.C.R.S., supra, 872 P.2d at 1342. And, of course, no such parental responsibility award will be made unless a court in fact determines that it would be in the best interests of the child.

We conclude that, by its plain and unambiguous wording, § 14 — 10—123(l)(b) creates an independent basis for standing, which extends to any person as long as the child is not in the care of either parent. We further conclude that this interpretation is consistent with the policy considerations set forth by the General Assembly, that it creates no substantive due process concerns and that any other interpretation would be strained. See In re Marriage of Hannum, 796 P.2d 57 (Colo.App.1990)(if a statute is explicit and free from ambiguity, there is no room for interpretation or construction beyond giving effect to common and accepted meaning of words employed in the act, and resort should never be had to a strained interpretation).

In holding that the plain language of subsection (b) gives standing to stepfather, we do not view the interpretation articulated in In re Custody of A.D.C., supra, as disposi-tive. As relevant here, the holding of that case was that neither subsection (b) nor (c) imposed as a condition precedent a showing that the nonparent had become the psychological parent. Whether a nonparent was required to have physical custody to acquire standing under § 14-10-123(l)(b) appears to be merely tangential to that holding. Accordingly, the interpretation of subsection (b) in In re Custody of A.D.C. is dictum. See Lazuk v. Sch. Dist. No. 1, 22 P.3d 548 (Colo.App.2000)(dictum is not controlling precedent). However, to the extent that A.D.C. may be read to interpret subsection (b) to require a nonparent seeking allocation of parental responsibility to have physical custody, we decline to follow it.

II.

We also agree with stepfather that the trial court erred in awarding fees against him.

A court may award attorney fees in a domestic proceeding, including a parental responsibility action brought by a nonparent, under either §§ 13-17-102 or 14-10-119, C.R.S.2002. See In re Marriage of Aldrich, 945 P.2d 1370 (Colo.1997)(because dissolution proceedings under article 10, title 14 are civil, it is permissible for a district court to award attorney fees under §§ 13-17-102,14-10-119, or both); In re Custody of C.J.S., 37 P.3d 479 (Colo.App.2001)(party in a nonpar-ent custody proceeding has standing to seek attorney fees under § 14-10-119).

When awarding attorney fees, the trial court must specifically set forth the reasons for the award, and if it fails to provide findings sufficient to afford review of the basis for the award, an appellate court must reverse the award and remand for further proceedings. Bob Blake Builders, Inc. v. Gramling, 18 P.3d 859 (Colo.App.2001).

Hei’e, the parties appear to argue that the award of fees was made pursuant to § 13-17-102 and C.R.C.P. 11, although neither the magistrate nor the trial court identified the legal basis for the award. Accordingly, to the extent the award was entered as a sanction, it must be set aside in light of our holding that the trial court erred in dismissing stepfather’s petition.

Further, the record contains inadequate information concerning the pertinent factors that govern a § 14-10-119 determination. We note, however, that any request for fees under § 14-10-119, including a request for fees on appeal, may be considered by the court on remand.

We deny the request by mother and grandmother for attorney fees under C.A.R. 38(d). See Wood Bros. Homes, Inc. v. Howard, 862 P.2d 925 (Colo.1993).

The order dismissing stepfather’s petition for lack of standing is reversed, and the case is remanded for additional proceedings as directed.

Judge NIETO and Judge GRAHAM concur.


author: Judge VOGT.

text:
    In re the MARRIAGE OF Michael PRITCHETT, Appellee, and Michelle K. Bollinger, f/k/a Michelle Pritchett, Appellant.
    No. 02CA1054.
    Colorado Court of Appeals, Div. IV.
    Oct. 9, 2003.

      Oxman & Oxman, P.C., Stephen E. Ox-man, Denver, Colorado, Gary L. Crandell, P.C., Gary L. Crandell, Denver, Colorado, for Appellee.
    Michelle K. Bollinger, pro se.
   Opinion by

Judge VOGT.

In this post-dissolution proceeding, Michelle K. Bollinger (mother) appeals the district court order finding her in contempt for failure to comply with an order granting Michael Pritchett (father) parenting time. We vacate the order.

Permanent orders entered in the parties’ dissolution proceedings in Colorado in 1996 granted mother and father joint custody of their two children, with mother as the residential custodian. In a 1998 modification, mother was granted sole custody after father had relocated to Oregon. Mother subsequently moved with the children from Colorado to North Dakota.

Parenting time disputes culminated in a 2001 Colorado court order granting father parenting time overnight on October 22, 2001, and, provided he “show[ed] proof of being enrolled in a parenting program,” granting him additional parenting time at the children’s Christmas break. The October overnight did not occur, and on November 16, 2001, father moved for a contempt citation based on mother’s failure to obey the order.

Two weeks later, mother notified the Colorado court, pursuant to the Uniform Child-custody Jurisdiction and Enforcement Act, § 14-13-101, et seq., C.R.S.2002 (UCCJEA), that she had filed a motion in a North Dakota court to determine jurisdiction over custody issues. Noting that father had been living in Oregon for four years and that she and the children had been living in North Dakota for three years, mother asserted that Colorado was an inconvenient forum and that North Dakota was now the children’s home state.

After the Colorado and North Dakota courts consulted, the Colorado court retained jurisdiction over this matter only “for purposes of resolving the currently pending contempt citation, which is set for hearing on January 14, 2002.” Jurisdiction over all other matters was transferred to the North Dakota court.

One week before the January 14 hearing date, father filed a second .motion in the Colorado court for a contempt citation, alleging that mother had disobeyed the other provision of the 2001 order by prohibiting him from exercising parenting time at Christmas. The first contempt hearing was continued, and the two motions for contempt citations were consolidated for a February 12 hearing by the Colorado court.

Mother moved to dismiss the second contempt citation, citing, inter alia, the Colorado court’s lack of jurisdiction over anything but the first contempt citation. The court does not appear to have ruled on her motion. She also filed a motion in the North Dakota court for a contempt citation against father, citing his failure to prove his completion of the parenting class required as a precondition to the parenting time at Christmas. The North Dakota court set mother’s contempt motion, as well as other parenting time issues, for a hearing on March 15.

At the February 12 hearing in Colorado, the magistrate dismissed the first contempt citation on the merits, finding that mother did not disobey the order because father waived the October overnight. However, mother was held in contempt for the Christmas break visitation violation alleged in the second motion. To purge the contempt, mother agreed to deliver the children to father for five weeks of parenting time and to appear at a March 22 review hearing. The parties also stipulated that mother’s failure to comply would result in three months of parenting time for father and imposition of attorney fees.

When mother subsequently failed to appear at the March 22 review hearing, a bench warrant for her arrest issued.

On mother’s motion for review, the district court adopted the magistrate’s order. The court found that the magistrate did not err in retaining jurisdiction over the second contempt matter because both contempt citations were based on the same underlying order. The district court also found that mother waived her objection to the exercise of jurisdiction by appearing at and participating in the hearing.

I.

Mother contends that the Colorado court lacked jurisdiction to hear the second contempt matter. We agree.

A.

Effective July 1, 2000, the UCCJEA replaced its predecessor, the Uniform Child Custody Jurisdiction Act (UCCJA). Thus, resolution of the motions at issue here, filed after the effective date, is governed by the UCCJEA. See § 14-13-403, C.R.S.2002; A. Arkin, The Uniform Child Custody Jurisdiction Enforcement Act: Part I, 29 Colo. Law. 73 (Sept.2000).

Whether a trial court has subject matter jurisdiction over a UCCJEA proceeding presents a question of law that is reviewed de novo on appeal. Atchison v. Atchison, 256 Mich.App. 531, 664 N.W.2d 249 (2003).

Because Colorado was the home state of the children when the dissolution of marriage proceeding commenced, the Colorado court had jurisdiction to make the initial child custody determination. See §§ 14-13-102(7), 14-13-201(1), C.R.S.2002; Nistico v. Dist. Court, 791 P.2d 1128 (Colo.1990)(applying similar provisions under the UCCJA).

Under the UCCJEA, the court that has made the initial custody determination generally retains exclusive, continuing jurisdiction until the child and both parents leave the state or no longer have a significant connection with the state. Section 14-13-202(1); see A. Arkin, The Uniform Child Custody Jurisdiction Enforcement Act: Part II, 29 Colo. Law. 81 (Oct.2000); National Conference of Commissioners on Uniform State Laws, Summary of UCCJEA (2001), available at http://www.nccusl.org/necusl /unifor-mact_summaries/uniformacts-s-uccjaea.asp. The UCCJEA also provides that a state with exclusive, continuing jurisdiction may relinquish jurisdiction when it determines that another state would be a more convenient forum. Section 14-13-207(1), C.R.S.2002; see § 14-13-202 official comment, C.R.S. 2002.

The UCCJEA seeks to eliminate the simultaneous exercise of jurisdiction over custody decrees by more than one state. See § 14-13-206 official comment, C.R.S.2002. Consistent with that policy, appellate decisions have recognized the limited jurisdiction of their own courts where another state is properly exercising UCCJEA jurisdiction. See McNabb ex rel. Foshee v. McNabb, 31 Kan.App.2d 398, 65 P.3d 1068 (2003)(where Virginia court stayed custody proceeding and tentatively offered to defer jurisdiction to Kansas court, and Kansas court failed to take any action to accept UCCJEA jurisdiction before Virginia court vacated its deferral decision, Kansas could not thereafter exercise UCCJEA jurisdiction); Campbell v. Martin, 802 A.2d 395 (Me.2002)(where Maine court had only temporary emergency jurisdiction under UCCJEA, it properly dismissed request to consider additional matters outside the scope of that jurisdiction); In re Marriage of Medill, 179 Or.App. 630, 40 P.3d 1087 (2002)(where Oregon court lacked jurisdiction under UCCJEA to modify its initial custody and parenting time determinations, it could not modify custody or parenting time as a sanction for contempt).

We conclude that, under the UC-CJEA, the Colorado court was without jurisdiction to resolve the second contempt proceeding once it had relinquished jurisdiction over all matters except the first contempt proceeding and the North Dakota court was properly exercising jurisdiction.

The fact that both contempt proceedings flowed from the same 2001 order does not warrant a contrary conclusion. In reliance on the Colorado court’s relinquishment of jurisdiction of all matters except the first contempt, the North Dakota court had, by the time of the February hearing in Colorado, already commenced proceedings regarding the same 2001 Colorado order. The North Dakota court’s ruling arising out of its March 2002 hearing is not part of the record on appeal. However, a portion of the ruling quoted by mother to the Colorado court states that North Dakota would not enforce the Colorado order granting father Christmas visitation.

As noted, the Colorado court had found mother in contempt for not allowing that visitation and had granted father additional parenting time as a sanction. That sanction, however, was a parenting determination over which the North Dakota court had assumed jurisdiction. See In re Marriage of Medill, supra. Thus, the simultaneous exercise of jurisdiction by the Colorado and North Dakota courts resulted in the sort of inconsistent rulings that the UCCJEA was intended to avoid.

Because the Colorado court lacked jurisdiction to rule on the second contempt citation, its order finding mother in contempt and imposing sanctions is void, and the attorney fee award and bench warrant issued pursuant to that order must likewise be vacated. See Young v. Punturo, 252 Mich.App. 47, 651 N.W.2d 122 (2002)(where Michigan court lacked jurisdiction under UCCJA, its orders finding mother in contempt for failure to comply with parenting time schedule were void).

B.

We are not persuaded otherwise by father’s argument and the district court’s ruling that mother waived her jurisdictional objection by appearing at and participating in the February 12 hearing.

The UCCJEA addresses subject matter jurisdiction, and personal jurisdiction over a party is not necessary or sufficient to make a child custody determination. Section 14-13-201(3), C.R.S.2002. Subject matter jurisdiction concerns the authority of the court to decide the issues before it. In contrast to personal jurisdiction, subject matter jurisdiction may not be waived and can be raised at any stage in the proceedings. See In re Marriage of Tonnessen, 937 P.2d 863 (Colo.App.1996)(under similar provision of UCCJA, where Colorado court did not have subject matter jurisdiction to determine custody, wife’s participation in earlier proceedings could not confer such jurisdiction).

Moreover, we agree with mother that, as a practical matter, she had no choice but to attend the Colorado hearing. She remained subject to the Colorado court’s jurisdiction over the first contempt proceeding, see § 14-13-207(3), C.R.S.2002 (in order relinquishing jurisdiction based on inconvenient forum, court may impose any just and proper condition), and because the two proceedings were consolidated, she could not avoid an appearance.

II.

Mother also contends that certain eviden-tiary rulings were erroneous, that the award of attorney fees was an abuse of discretion, and that she was denied a fair and impartial hearing. Our resolution of the jurisdictional issue obviates the need to address these issues.

The order finding mother in contempt is vacated.

Judge KAPELKE and Judge WEBB concur.


author: Judge GRAHAM.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Lucas D. MERKLIN, Defendant-Appellant.
    No. 02CA0422.
    Colorado Court of Appeals, Div. IV.
    Oct. 9, 2003.

      Ken Salazar, Attorney General, Roger G. Billotte, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Jennifer L. Mann, Deputy State Public Defender, Mandarin A. Bowers, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge GRAHAM.

Defendant, Lucas D. Merklin, appeals the judgment of conviction entered upon a jury verdict finding him guilty of violation of a restraining order imposed under § 18 — 1— 1001, C.R.S.2002. We affirm.

The charges arose from defendant’s unauthorized contact with the victim. Defendant was sentenced to nine months in Adams County Jail.

I.

Defendant argues that the trial court violated his rights to due process, equal protection, and a fair and impartial trial by allowing the jury to question witnesses during trial. We disagree.

In People v. Milligan, 77 P.3d 771 (Colo.App. No. 01CA0435, Jan. 30, 2003), a division of this court held that the trial court’s implementation of a supreme court pilot project allowing jurors to submit written questions to witnesses was not structural error warranting reversal. The procedures did not violate the defendant’s due process and equal protections rights. We find the analysis persuasive and follow it here.

The division in Milligan noted that every federal appellate court to consider this issue has upheld the decision to allow juror questioning as within the trial court’s sound discretion. See, e.g., United States v. Richardson, 233 F.3d 1285 (11th Cir.2000); United States v. Collins, 226 F.3d 457 (6th Cir.2000); United States v. Hernandez, 176 F.3d 719 (3d Cir.1999). Additionally, Milligan observed that the majority of the states to consider this issue has permitted jurors to ask witnesses questions. See United States v. Richardson, supra (collecting decisions from twenty-five states approving the practice).

A few states have disapproved the practice. See, e.g., State v. Williamson, 247 Ga. 685, 279 S.E.2d 203 (1981)(disapproving jurors’ questions to witnesses, but concluding reversal not required because the defendant did not object); State v. Zima, 237 Neb. 952, 468 N.W.2d 377 (1991)(disapproving practice, but concluding reversal not required because the defendant argued against prosecution’s motions for mistrial and thereby invited error). Only Minnesota and Texas have refused to apply harmless error analysis and concluded that reversal is required. See State v. Costello, 646 N.W.2d 204 (Minn.2002); Morrison v. State, 845 S.W.2d 882 (Tex.Crim.App.1992).

Here, the jurors posed eighteen questions to the five witnesses who testified at trial. The questions were factual and specific. See United States v. Sutton, 970 F.2d 1001 (1st Cir.1992)(no abuse of discretion where questions few in number and bland in character). The questions were submitted in writing and were first discussed outside the presence of the jury. See United States v. Bush, 47 F.3d 511 (2d Cir.1995)(jurors should be instructed to submit them questions in writing to the judge; outside the presence of the jury, the judge should review the questions with counsel, who may then object; and the court itself should put the approved questions to the witnesses). Additionally, the trial court instructed the jury that it could not consider or draw any inferences from any questions to which the parties had objected. See People v. Wiley, 51 P.3d 361 (Colo.App.2001)(absent a contrary showing, we presume jury understood and heeded trial court’s instructions).

Additionally, here, as in Milligan, the trial court gave the following instructions about the pilot project:

As far as the questions are concerned ... I will ask the jurors, “do any of you have any questions of this witness.” If you do, write down your question, pass it down to the end, [the bailiff] will pick it up.... I will talk to both of the attorneys about the questions ... so that we know what the question is so we can determine whether- or-not we believe it is an appropriate question based on the Rules of Evidence and Rules of Procedure.... If the attorneys have additional questions based on your question, I will allow them to ask it.... If it’s a question that cannot be asked, I will simply say, “I’m sorry, this is a question we cannot ask based on the Rules of Evidence” and I don’t want you to assume anything by my not asking them a question.

Defendant did not present any evidence in the record that shows that the juror questioning process prejudiced him or resulted in an unfair trial. See United States v. Richardson, supra (the defendant neither presented evidence of prejudice resulting from juror questions nor showed abuse of discretion). While it is true that defendant was not told about the proposed process until the first day of trial, defendant has not shown that the delayed notice hindered his trial preparation or strategy. See United States v. Collins, supra (the defendant did not state how juror questions undermined trial strategy)-

We therefore find no error in the trial court’s decision to allow the juror questions.

II.

Defendant next contends that the trial court erred in admitting evidence of other acts under CRE 404(b). We conclude that the evidence was admissible as res gestae.

A trial court has considei*able discretion to determine whether evidence has logical relevance. People v. Saiz, 32 P.3d 441 (Colo.2001). A trial court’s evidentiary ruling will not be disturbed on appeal absent an abuse of discretion. Abuse of discretion occurs when the trial court’s ruling is manifestly arbitrary, unreasonable, or unfair. People v. Milton, 732 P.2d 1199 (Colo.1987).

CRE 404(b) bars evidence of other crimes, wrongs, or acts for the purpose of proving the character of the person to show that he acted in conformity therewith.

However, evidence of other offenses “may be needed for the fact finder to understand the context in which the alleged crime occurred.” People v. Czemerynski, 786 P.2d 1100, 1109 (Colo.1990). Evidence of criminal conduct that occurs “contemporaneously with or is part and parcel of the crime charged is considered part of the res gestae of that offense, and consequently is not subject ... to the general rule that excludes evidence of prior criminality.” People v. Czemerynski, supra, 786 P.2d at 1109 (quoting Callis v. People, 692 P.2d 1045, 1051 n. 9 (Colo.1984)). Res gestae evidence is admissible if it is relevant and its probative value is not substantially outweighed by the danger of unfair prejudice. See People v. Czemerynski, supra.

The prosecutor stated that the victim would testify that “she had received numerous phone calls” from defendant. Defense counsel objected that there had been no motion to elicit uncharged misconduct evidence under CRE 404(b). The trial court ruled that reference to phone calls that were the basis for the restraining order was CRE 404(b) evidence, specifying that only the phone calls and contact that formed the basis of the charges here should be discussed.

However, one of the juror’s questions submitted to the court asked, “Why did [the victim] not call the police if she feared him so much after the phone call on March 22, 2001?” Another juror asked, “Why did you wait 12 days to report the phone calls?” And, a third juror asked, ‘Why did you continue talking to him instead of hanging up?”

During an in camera hearing, the victim said that she delayed telling police about the March 22 telephone call because she had contacted the police several times before and it seemed like “another straw on the camel’s back.”

Ultimately, the court allowed the jurors’ questions for the purpose of showing the victim’s state of mind. However, the questions were also appropriate in the context of res gestae.

As was the ease in People v. Czemerynski, here, the victim testified regarding prior telephone calls made by defendant. The jurors’ questions indicated them need to understand why the victim did not immediately report the calls, and the calls leading up to the crime thus were part of the scenario and necessary to explain the setting in which it occurred. See People v. Lobato, 187 Colo. 285, 530 P.2d 493 (1975)(no error committed by permitting jury to view criminal episode in context in which it happened).

The victim’s testimony about these calls was admissible res gestae evidence. We thus find no abuse of discretion in the trial court’s decision to admit this evidence.

III.

Defendant argues that the trial court erred in taking judicial notice of a municipal court order after the close of evidence. Defendant concedes that a trial court has authority to recognize the existence of another court under CRE 201; however, he argues that the circumstances under which the trial court took judicial notice violated his rights to due process and a fair trial. We disagree.

Under CRE 201(b), a court may take judicial notice of adjudicative facts that are “not subject to reasonable dispute” and are “(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” A court may take judicial notice at any stage of the proceedings whether requested or not. See CRE 201(c), (f).

During an instruction conference, the court proposed two supplemental instructions defining “municipal court” and “restraining order.”

The following instruction was given to the jury: “ ‘Municipal Court’ means the duly constituted court of any city in the State of Colorado, and includes the city of Westminster, Colorado.” Defense counsel also objected to the use of the words “the duly constituted Court in the City of Westminster,” arguing that they implied that the prosecution had proved the element of the offense relating to the Westminster Municipal Court.

When the prosecutor asked the court to take judicial notice of the municipal court case, the clerk’s file, and the information regarding the trial date and the victim’s subpoena, defense counsel objected, stating, “[T]he Court is well aware that judicial notice is to be limited to issues that are not in dispute. These are material elements of the offense and the prosecution needs to prove them and not with judicial notice.”

The trial court responded, “The Court can take judicial notice of the Court’s file and the Court will take judicial notice of this Court’s file.” In addition, the trial court sua sponte took judicial notice of the fact that the City of Westminster is a home rule city, and its court was constituted as a municipal court. That the Westminster City Court was a municipal court was a matter of general knowledge within the jurisdiction and was capable of accurate confirmation through sources known to the trial court. It was therefore a matter that should not have been disputed.

When asked whether she knew which courts entered the restraining orders, the victim responded, “Through Jefferson County, Westminster Municipal and Adams County.” Defense counsel did not object. Further, the restraining order issued by Westminster Municipal Court was admitted into evidence, and the victim identified it as such.

Defendant argues that in taking judicial notice, the trial court exhibited bias. We do not dispute that a trial court should act impartially. See People v. Hrapski, 718 P.2d 1050 (Colo.1986). However, we note that defendant never moved to disqualify the judge, and there is no evidence that the trial court acted partially or was unfair to either party. Additionally, we cannot say that the trial court’s decision to take judicial notice substantially influenced the verdict or impaired the fairness of the trial. See People v. Gaffney, 769 P.2d 1081 (Colo.1989)(harmless error standard).

Based on our analysis, we likewise reject defendant’s argument that the trial court erred in instructing the jury on the definition of a municipal court and so eliminating the prosecution’s burden of proof as to an element of the offense of violation of a municipal restraining order. See People v. Jurado, 30 P.3d 769 (Colo.App.2001)(upon review, we consider the entire record, including the jury instructions as a whole and the evidence and arguments presented at trial).

IV.

Defendant contends the trial court erred in providing the jury with an instructional definition that informed the jury about a previously charged offense involving the victim, when there was no evidence that defendant previously had been charged criminally for misconduct against the victim. We are not persuaded.

A court has a duty to instruct the jury fully on every issue presented, whether or not requested to do so. People v. Mackey, 185 Colo. 24, 521 P.2d 910 (1974). In determining the propriety of any one instruction, the instructions must be considered as a whole, and if they properly instruct the jury as a whole, there is no error. People v. Lewis, 710 P.2d 1110 (Colo.App.1985).

Here, the trial court sua sponte submitted a jury instruction stating, “C.R.S. 18 — 1— 1001- — -Mandates that a restraining order shall issue against any person charged with any criminal violation listed in Title 18 of the Colorado Revised Statutes prohibiting the person so charged from harassing, molesting, intimidating, retaliating against or tampering with any witness or victim of the acts charged.”

The trial court rejected defense counsel’s offer to stipulate that the restraining order was issued pursuant to § 18-1-1001. Defense counsel objected to the instruction, arguing that it implied conduct that was prohibited under CRE 404(b). The trial court disagreed, noting that it had taken judicial notice of the Adams County Court case that had been the basis for the restraining order and that defendant had not objected on CRE 404(b) grounds.

Here, the instruction complained of is a correct statement of law. See People v. Lewis, supra (where instruction explaining “exercise control” element of theft correctly stated law and defined element, trial court did not err in giving instruction); see also § 18-1-1001. Additionally, the instruction did not provide the jury with information about the charges or details of the alleged crime that was the basis of the county court case. The instructions as a whole properly instructed the jury, and we thus find no error.

V.

Last, defendant contends that the trial court’s refusal to give his tendered theory of the case instruction constitutes reversible error. We disagree.

A defendant is entitled to an instruction on his theory of the case if there is any record evidence to support it. However, a trial court may refuse an instruction if it is argumentative, unduly emphasizes particular evidence, or contains statements not supported by the evidence. The court is not required to instruct the jury on the defendant’s theory in the particular language tendered by the defendant. See People v. Baird, 66 P.3d 183 (Colo.App.2002). Nor need the trial court act as an advocate for either party by crafting instructions embodying its theory of the case. People v. Garcia, 28 P.3d 340 (Colo.2001).

Defendant’s proposed instruction stated,

[Defendant] asserts that he is not guilty of Violation of a Restraining Order or Bribing a Witness because he did not contact [the victim] on March 22, 2001 or April 3, 2001. On April 3, 2001, [defendant] asserts that he was at work, with his father, and with friends during the period of time that [the victim] claims he was following her in her neighborhood.

The trial court rejected the instruction because it was simply a denial of the charge. The court further stated that defendant had not put on evidence showing he was in a place where he could not have committed the offense.

Here, as the trial court concluded, the first sentence of the instruction merely denies the charge. The second sentence purports to be an alibi; however, the testimony at trial did not indicate that defendant was in a different place at the relevant time so as to make it impossible for him to be guilty. See People v. Huckleberry, 768 P.2d 1235, 1238 (Colo.1989)(quoting Black’s Law Dictionary 66 (5th ed.1979), the defense of alibi is “[a] defense that places the defendant at the relevant time in a different place than the scene involved and so removed therefrom as to render it impossible for him to be the guilty party”). Rather, defendant’s three witnesses were unable to recall the exact dates and times defendant allegedly was with them.

Further, defendant was not precluded from presenting his theory of the case during closing argument. See People v. Dore, 997 P.2d 1214 (Colo.App.1999)(in determining whether the jury has been adequately informed of the defendant’s theory of defense, the court may consider whether defense counsel’s closing argument fairly represented his theory to the jury). Rather, he argued that “you know now that [defendant] was with his dad” and, “You may not know for sure what time but you know he was there and also with his friends at some point before dark and went to the grocery store and spent about an hour there....”

We therefore conclude that the trial court properly rejected defendant’s instruction.

The judgment is affirmed.

Chief Judge DAVIDSON and Judge NIETO concur.