author: Judge METZGER.

text:
    COLORADO DEPARTMENT OF REVENUE, Appellant, v. Jake A. GARNER, Appellee.
    No. 01CA0259.
    Colorado Court of Appeals, Div. I.
    Feb. 28, 2002.
    Certiorari Granted Sept. 9, 2002.
    Ken Salazar, Attorney General, Robert H. Dodd, Jr., Assistant Attorney General, Denver, Colorado, for Appellant.
    Larry A. Garner, Golden, Colorado, for Appellee.
   Opinion by

Judge METZGER.

In this driver's license revocation case, the Department of Revenue appeals the district court's judgment entered in favor of appellee, Jake A. Garner. The Department had revoked Garner's driver's license for driving under restraint pursuant to § 42-2-188(8B), C.R.S.2001, and the district court set aside the revocation order on judicial review. We affirm.

The relevant facts are not in dispute. On June 14, 2000, Garner was arrested for driving under the influence of alcohol, and the results of a breath test showed an excessive blood aleohol content. Based on this incident, the Department later revoked his driver's license for three months pursuant to § 42-2-126, C.R.S.2001, effective July 22, 2000. Garner's driver's license was reinstated on October 28, 2000.

Meanwhile, on August 19, 2000, Garner was involved in a traffic accident in which the vehicle he was driving was rear-ended by another vehicle. The accident report shows that the other driver was ticketed for careless driving, while Garner was ticketed only for driving under restraint in violation of § 42-2-138(1), C.R.8.2001.

Based on the accident report, the Department subsequently revoked Garner's driver's license for an additional year pursuant to § 42-2-188(8), for driving while the previous revocation was in effect. At the hearing on this revocation action, Garner presented doe-umentary evidence showing that the driving under restraint charge had been dismissed on October 27, 2000. The hearing officer rejected his arguments and ordered the revocation.

Garner thereafter brought an action for judicial review in the district court. Ruling that the hearing officer had erroneously construed § 42-2-138(8) to authorize revocation under these cireumstances, the district court set aside the revocation and ordered the reinstatement of Garner's driver's license.

On appeal, the Department contends the district court erred in holding that a convietion for a driving offense committed while under restraint is required for an additional restraint action under § 42-2-188(8). We disagree.

Section 42-2-188(8) provides as follows:

The department, upon receiving a record of comviction 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. (emphasis added)

These provisions authorize the Department to extend the period of a previous restraint action for an additional year whenever a driver whose license has been suspended or revoked commits additional traffic offenses while the previous restraint is in effect. See Allen v. Charnes, 674 P.2d 378 (Colo.1984). Conviction of any driving offense, not necessarily just the offense of driving under restraint, committed during a previous period of restraint is sufficient to support an extension of that restraint period by the Department under § 42-2-1838(8). See Conway v. Colorado Dep't of Revenue, 653 P.2d 411 (Colo.App.1982).

The Department does not have discretion under these provisions to grant driving privileges to one who has been convicted of a driving offense committed while a previous restraint was in effect,. Thus, the only issue to be determined at a hearing under § 42-2-1838(8) is whether the driver has sustained a conviction for an offense committed while operating a motor vehicle during a previous period of restraint. See Harris v. Colorado Dep't of Revenue, 714 P.2d 1325 (Colo.App.1985).

Contrary to the Department's argument, an accident report alone does not constitute a sufficient basis for an additional restraint action under § 42-2-188(8). See Harris v. Colorado Dep't of Revenue, supra; see also Conway v. Colorado Dep't of Revenue, supra.

Section 42-2-188(8) does not authorize the Department to make an independent determination whether a driver has committed the requisite driving offense for the additional restraint action. Because the statute authorizes additional administrative sanctions only when another driving "offense" or "violation" has been committed, we conclude that § 42-2-188(8) authorizes the Department to take such action only when its records show a conviction of such an infraction.

We note that many other restraint actions the Department is authorized to take are also predicated on a record of conviction of various driving offenses. See, eg., §§ 42-2-125, 42-2-127, 422-208, C.R.8.2001. Conversely, where the General Assembly has authorized the Department to take certain restraint actions based on its independent determination of the relevant facts, such statutory provisions expressly authorize such determinations under specific procedures. See §§ 42-2-126, 42-2-127.7, C.R.8.2001.

We also perceive nothing in the language or legislative history of § 42-2-138(8), to indicate that the General Assembly intended the Department to have such independent fact finding authority in this context. The Department has not cited, and we have not found, any authority upholding a restraint action taken under the current or former provisions of § 42-2-138(8) absent a convietion of a separate offense.

Here, Garner was not convicted of any offense committed while the previous revocation was in effect. Rather, the record shows that, although he was charged with driving under restraint based on the traffic accident, that charge was later dismissed.

Under these circumstances, we conclude the administrative record does not support the Department's revocation action pursuant to § 42-2-138(3) for driving under restraint. See Lathe v. State, 691 P.2d 356 (Colo. Department's additional restraint action taken under these provisions where criminal charge of driving under restraint was dismissed and driver was convicted only of failing to notify Department of a change of address).

Thus, the district court properly set aside this revocation order on judicial review. See § 42-2-135(1), C.R.S.2001; see also § 24-4-106(7), C.R.S.2001.

In view of this disposition of the issues, we need not address the remaining contentions.

The judgment is affirmed.

Judge ROTHENBERG and Judge KAPELKE concur.


source: Caselaw Access Project

author: Judge ROTHENBERG.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintif-Appellee, v. Hubert UNDERWOOD, Defendant, Appellant.
    No. 00CA1367.
    Colorado Court of Appeals, Div. L.
    March 14, 2002.
    Certiorari Denied Sept. 9, 2002.

      Ken Salazar, Attorney General, Cheryl Hone, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Forrest W. Lewis, P.C., Forrest W. Lewis, Denver, Colorado, for Defendant-Appellant.

       Justice COATS does not participate.

   Opinion by

Judge ROTHENBERG.

Defendant, Hubert Underwood, appeals the judgment of conviction entered on a jury verdict finding him guilty of aggravated incest and sexual assault on a child by one in a position of trust. We affirm.

At trial, the prosecution presented evidence that one morning, while defendant's sixteen-year-old daughter (the victim) was sleeping, defendant entered her room and "laid down beside" her. He asked if she wanted a back massage, and although she said no, he proceeded to rub her back. He then moved his hands near her breasts, removed her pants, and forced her to have sexual intercourse with him.

I. Exclusion of Evidence

Defendant first contends the trial court abused its discretion by precluding cross-examination of the victim about a miscarriage she had had after the offense occurred, but before she had reported it to police. The trial court disallowed such evidence under CRE 408, reasoning that it might make the victim appear promiscuous and was unfairly prejudicial to the prosecution. We perceive no abuse of discretion.

Relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." CRE 403.

The trial court's decision to exclude evidence under this rule will not be overturned absent an abuse of discretion and prejudice to the defendant. People v. Gibbens, 905 P.2d 604 (Colo.1995). An abuse of discretion in this context does not occur unless the trial court's ruling was manifestly arbitrary, unreasonable, or unfair. See People v. Dunlap, 975 P.2d 723 (Colo.1999).

Here, there was evidence that after the charged incident, the victim's grades at school dropped markedly, and she began cutting her arms and pulling her hair. The prosecution's theory was that defendant's actions had caused this erratic behavior.

Defense counsel cross-examined the victim regarding several other traumatic events in her life to establish there were reasons, apart from the charged incident, for her erratic behavior. The defense elicited evidence from the victim that: (1) she had been pregnant and had had an abortion; (2) she had had an operation to remove a kidney; (8) she had been fighting with her mother; and (4) she had broken up with three boyfriends.

Because these events, individually and collectively, made defendant's point clear, we conclude the trial court's ruling disallowing evidence of the victim's miscarriage did not violate CRE 403. There is no indication the court's ruling hampered the presentation of defendant's theory or prejudiced him, and the court had well-founded concerns that evidence of the victim's miscarriage may have made her appear promiscuous and would have been unduly prejudicial by diverting the jury's attention from the real issues in the case.

We therefore conclude the trial court did not abuse its discretion in determining the probative value of the miscarriage evidence was substantially outweighed by the danger of unfair prejudice to the prosecution, and in disallowing this evidence. See People v. Delgado, 890 P.2d 141 (Colo.App.1994).

II. Child Hearsay

Defendant next contends the trial court abused its discretion in allowing the victim's mother and a mental health expert to testify about statements made by the victim. We disagree.

As relevant here, § 13-25-129(1)(a) and (b)(D), C.R.S.2001, allows for the admission of child hearsay statements in sexual offense cases if "[the court finds ... that the time, content, and cireumstances of the statement provide sufficient safeguards of reliability; and [tThe child ... [tlestifies at the proceedings."

The following factors offer the trial court guidance in determining the admissibility of child hearsay statements:

(1) Whether spontaneously; the statement was made
(2) whether the statement was made while the child was still upset or in pain from the alleged abuse;
(3) whether the language of the statement was likely to have been used by a child the age of the declarant;
(4) whether the allegation was made in response to a leading question;
(5) whether either the child or the hearsay witness had any bias against the defendant or any motive for lying;
(6) whether any other event occurred between the time of the abuse and the time of the statement which could account for the contents of the statement;
(7) whether more than one person heard the statement; and
(8) the general character of the child.

People v. District Court, 776 P.2d 1083, 1089-90 (Colo.1989).

The trial court's decision to admit child hearsay statements will not be overturned absent an abuse of discretion. People v. Hansen, 920 P.2d 831 (Colo.App.1995).

According to the evidence presented at trial, the victim and her mother began arguing while driving back from a doctor's appointment. The mother asked the victim what was causing her erratie behavior, and the victim reported that defendant had touched her intimately. The mother immediately drove to the emergency room of a nearby hospital where the victim told a therapist that defendant had forced her to have sexual intercourse with him.

At trial, both the mother and the therapist were called to testify about the victim's statements. The trial found the victim's statement to her mother was reliable and was an "outery" made by the victim while explaining "her depression and behavior and mood swings."

We conclude the trial court did not abuse its discretion in admitting this testimony. While the victim's statement to her mother was made in response to questioning, the mother's questions were not leading. The charged incident occurred approximately a year before the victim made this statement, and other stressful events had intervened. However, there was evidence the victim was still very upset over the incident with defendant, and no evidence suggested she had a motive to accuse him falsely.

Defendant's sole objection to the testimony of the therapist was that the victim's statement to her mother "tainted" her later statement to the therapist. But, because we conclude the trial court did not abuse its discretion in admitting the victim's statement to her mother, we reject this related contention.

III. Similar Transaction Evidence

Defendant next contends the trial court erred in admitting testimony of other acts committed by him as similar transaction evidence. He maintains that such evidence did not satisfy § 16-10-3801, C.R.8.2001, or CRE 404(b), and that the court's failure to give a contemporaneous limiting instruction as to certain testimony was plain error requiring reversal. We are not persuaded.

A. Standard for Admitting Other Acts Evidence

Section 16-10-3801 and CRE 404(b) govern the admission of similar transaction evidence in sexual offense cases. People v. Martines, 36 P.3d 154 (Colo.App.2001).

The legislative declaration of $ 16-10-801 states "that such evidence of other sexual acts is typically relevant and highly probative, and it is expected that normally the probative value of such evidence will outweigh any danger of unfair prejudice, even when incidents are remote from one another in time." Section 16-10-801(1), C.R.S.2001.

Section 16-10-801(8) provides in relevant part:

The prosecution may introduce evidence of other acts of the defendant to prove the commission of the offense as charged for any purpose other than propensity, including: Refuting defenses, such as ... recent fabrication; showing a common plan, scheme, design, or modus operandi, regardless of whether identity is at issue and regardless of whether the charged offense has a close nexus as part of a unified transaction to the other act; [or] showing motive, opportunity, [or] intent....

Section 16-10-301(4) provides the procedures that apply when the prosecution introduces such evidence:

(a) The prosecution shall advise the trial court and the defendant in advance of trial of the other act or acts and the purpose or purposes for which the evidence is offered.
(b) The trial court shall determine by a preponderance of the evidence whether the other act occurred and whether the purpose is proper under the broad inclusion-ary expectations of this section.
(c) The evidence of other acts may not be admitted until the trial court finds that the prosecution has by evidence or offer of proof established a prima facie case for the charged offense.
(d) The trial court shall, at the time of the reception into evidence of other acts and again in the general charge to the jury, direct the jury as to the limited purpose or purposes for which the evidence is admitted and for which the jury may consider it.

In order to introduce evidence of other sexual acts committed by the defendant, the prosecution also must satisfy CRE 404(b) and the four-part test established in People v. Spoto, 795 P.2d 1814 (Colo.1990). See People v. Martinez, supra. CRE 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The Spoto test requires that: (1) the proffered evidence relate to a material fact; (2) the evidence be logically relevant; (3) the logical relevance be independent of the intermediate inference, prohibited by CRE 404(b), that the defendant has a bad character and acted in conformity with such bad character; and (4) the probative value of the evidence not be substantially outweighed by the danger of unfair prejudice. People v. Spoto, supra.

B. Other Daughter's Testimony

Defendant next contends the trial court abused its discretion by allowing another one of his daughters (the other daughter) to testify about an incident three years before the charged offense in which he forced the other daughter to have sexual intercourse with him. The other daughter testified that defendant entered her bedroom, started rubbing her back and sides, removed her shorts, and had intercourse with her. The cireumstances were remarkably similar to those involving the victim. However, defendant contends this evidence was not logically relevant independent of the inference that he has a bad character. We disagree.

Whether to admit such evidence was within the sound discretion of the trial court, People v. Madrid, 908 P.2d 1167 (Colo.App.1995), and the admission of such evidence will be upheld absent an abuse of discretion. People v. Snyder, 874 P.2d 1076 (Colo.1994).

The trial court allowed the other daughter to testify about the incident with defendant because it showed a common scheme or plan and modus operandi, which are permissible purposes under § 16-10-3018) and CRE 404(b). Its remoteness did not undermine its relevancy for these purposes. See § 16-10-301(1); People v. James, 942 P.2d 1331 (Colo.App.1997). Thus, because this testimony demonstrated how defendant had performed sexual acts with his daughters, it was logically relevant independent of the prohibited inference that defendant acted in conformity with his bad character during the act charged.

We therefore reject defendant's contention that the trial court abused its discretion in admitting the other daughter's testimony.

C. Motel Incident

Defendant next contends the trial court abused its discretion in allowing the victim and another witness (a former boyfriend of the victim) to testify about defendant's actions at a motel with the victim three and a half years before the charged incident. Defendant maintains that such evidence did not meet the foundational requirements of § 16-10-801(4) and therefore was improperly admitted. We are not persuaded.

As to that incident, the vietim testified that in the morning, defendant had asked her for a back rub and that he also gave her one. She further testified that defendant had told her she "was growing up to be a great girl and a grown woman," and he had moved his hands toward her breasts before she moved away from him.

The prosecution notified the trial court and defendant of its intention to introduce such evidence and also disclosed in its notice that the victim had told a former boyfriend about this incident. The victim's former boyfriend did not have personal knowledge of the motel incident, but he was allowed to testify she had told him shortly after the incident that defendant had massaged her back, that he "began to grope her breasts," and that he commented on how she "was becoming a woman." Thus, the boyfriend's testimony about what the victim told him is more properly analyzed under § 13-25-129, the hearsay exception allowing the admission of the statements of a child victim of a sexual offense, rather than under § 16-10-8301. However, we reach the same conclusion using either analysis.

The prosecution's stated purpose for admitting this evidence was to show res gestae, intent, knowledge, absence of mistake or accident, common plan, scheme, design, and modus operandi, and to rebut defendant's possible defense of recent fabrication. This notice satisfied the requirements of $ 16-10-301(4)(a).

Over defendant's objection, the trial court found the motel incident was a similar transaction and admitted the evidence under § 16-10-8301 and also as part of the res ges-tae. While the court did not specifically determine whether the purpose in admitting the evidence was proper, it found, and we agree, the earlier incident was similar to the charged incident to the extent that defendant initiated contact both times by giving the victim back rubs in the morning. This evidence suggested a common scheme or plan by defendant in initiating sexual contact and was evidence of his modus operandi. Those purposes were proper under $ 16-10-301(8) and (4)(b).

The trial court also did not determine whether the other act had occurred and whether the prosecution established a prima facie case for the charged offense as required by § 16-10-301(4)(b) and (c). However, the prosecution's offer of proof detailed the motel incident and the charged offense sufficiently to meet these requirements.

We reject defendant's related contention that the motel incident was not sufficiently similar to the charged offense and failed to satisfy the Spoto test. Although the trial court did not determine the admissibility of this evidence under Spoto, we conclude the evidence of the motel incident was sufficient ly similar and met the requirements of Spoto. See People v. Martinez, supra.

Because it demonstrated a common scheme or plan and modus operandi, evidence that defendant rubbed the victim's back at the motel related to a material fact, that is, whether defendant actually committed the charged act with the requisite knowledge. The evidence also was logically relevant because it made it more probable that defendant committed the charged act than without this evidence. Further, the testimony concerning the motel incident showed a pattern in the manner in which defendant initiated contact with the victim, and the logical relevance of the evidence therefore was independent of any inference that defendant was a person of bad character.

Nor do we agree with defendant that the probative value of this evidence was substantially outweighed by its prejudicial effect. The victim and her former boyfriend did not describe the incident in great detail and the victim's deseription of the motel incident was relatively minor, especially in comparison to her testimony in support of the charged offense that defendant had forced her to have sexual intercourse with him.

We therefore perceive no abuse of discretion by the trial court in allowing the testimony about the motel incident.

D. Failure to Give a Limiting Instruction

Relying on People v. Roberts, 738 P.2d 380 (Colo.App.1986), defendant next contends the trial court erred in failing to give the jury a contemporaneous instruction, pursuant to § 16-10-301(4)(d), explaining the limited purpose for which the jury could consider the motel incident testimony. We agree the trial court erred, but conclude reversal is not required.

Because defendant failed to object when the victim and the former boyfriend testified regarding the motel incident and failed to request a limiting instruction, we analyze this issue under the plain error standard of review. See People v. Garcia, 981 P.2d 214 (Colo.App.1998); see also Crim. P. 52(b) ("Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.").

Under this standard of review, we will reverse only if the error so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction. Walker v. People, 932 P.2d 308 (Colo.1997). As the supreme court explained in People v. Wilson, 838 P.2d 284, 290 (Colo.1992):

While the results of these cases turn on their particular facts, each decision echoes a common theme that is consistent with our plain-error standard of review-namely, that plain error will be found only if we can say with fair assurance that the trial court's failure to give the statutory cautionary instruction so undermined the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction.

In People v. Roberts, supra, the defendant was convicted of aggravated incest. The unlawful sexual contact consisted of an incident in which he allegedly had caressed his daughter's breasts through her clothes. Pursuant to § 16-10-8301, the prosecution was permitted to introduce the daughter's testimony about a number of uncharged sexual acts, including petting, fellatio, and intercourse, to which the defendant had subjected her over the course of ten years.

A panel of this court ordered a new trial, concluding the trial court had committed plain error under § 16-10-3801 by failing to give a limiting instruction at any time during the trial. The panel reasoned that, "[gliven the large number and the egregious nature of the other sexual contacts testified to by the daughter, the trial court's failure to instruct the jurors as to the limited purpose for which they could consider such evidence seriously prejudiced defendant's right to a fair trial on the charged offense." People v. Roberts, supra, 738 P.2d at 382.

We conclude the cireumstances here are distinguishable from those in Roberts. The evidence of defendant's conduct at the motel was relatively minor when compared to the other evidence that he had forced both of his daughters to have sexual intercourse with him. Although the victim's former boyfriend recalled that she had told him defendant "groped" her breasts at the motel, the vice-tim's own testimony regarding the incident was that defendant had massaged her back and moved his hands near her breasts without touching them.

Further, while Roberts recognized the trial court's duty to give a contemporaneous limiting instruction under § 16-10-801(4), it did not establish a per se rule requiring automatic reversal upon the court's failure to do so, in the absence of any objection by counsel. The plain error cases continue to "turn on their particular facts." People v. Wilson, supra, 838 P.2d at 290; see also People v. Opson, 632 P.2d 602, 605 (Colo.App.1980) (because § 16-10-8301 contains "mandatory rather than merely directory language," trial court did not err in giving limiting instruction over defendant's objection).

In People v. McClure, 779 P.2d 864 (Colo.1989), the supreme court cited Roberts as partial support for its conclusion that the trial court committed plain error by failing to give a limiting instruction before admitting testimony under § 13-25-129, the child hearsay statute.

However, in People v. Wilson, supra, the supreme court emphasized that McClure was not a per se rule requiring automatic reversal, and it disapproved a narrower interpretation of McClure by a panel of this court. The supreme court stated: "McClure should not be read for the proposition that a trial court's failure to give the statutory cautionary instruction [required by § 13-25-129(2)] will always constitute plain error." People v. Wilson, supra, 838 P.2d at 290; see People v. Diefenderfer, 784 P.2d 741 (Colo.1989) (clarifying that McClure was a fact specific decision).

After analyzing the particular facts presented in Wilson, the supreme court concluded-contrary to the determination of a panel of this court-that there was no plain error. The Wilson court analyzed the facts in earlier cases such as McClure, and focused on a number of relevant factors. Those factors included: the number of witnesses testifying; the credentials of the witnesses as experts; concern that the jury might give increased weight to the expert testimony; the boister-ing effect of the testimony upon the eredibility of the child victim; and whether the trial court gave a cautionary instruction in its general charge to the jury and supplemented it with an instruction on the credibility of witnesses.

In an analogous context, divisions of this court have considered alleged instructional errors regarding the admission of similar transaction evidence under CRE 404(b). The divisions have acknowledged the trial court's duty to give a contemporaneous limiting instruction when evidence of a prior conviction or similar transaction is admitted. Nevertheless, after examining the particular facts presented, the divisions have consistently concluded the trial court's failure to give such an instruction did not automatically require reversal under the plain error standard. See People v. Garcia, supra (trial court's failure to give limiting instruction before admitting evidence of previous convictions not plain error); People v. Harris, 892 P.2d 378 (Colo.App.1994) (failure to give limiting instruction before admitting evidence of co-conspirator's prior convictions not plain error); People v. Taylor, 804 P.2d 196 (Colo.App.1990) (where the defendant was charged with multiple counts of arson, trial court's failure to give limiting instruction before admitting evidence concerning each count charged not plain error); People v. Lucero, 724 P.2d 1374 (Colo.App.1986) (in child sexual assault case, failure to give limiting instruction before admitting evidence of similar transaction not plain error); see also People v. Gladney, 194 Colo. 68, 72, 570 P.2d 281, 233 (1977) (supreme court agreed "it would have been the better practice" to instruct the jury regarding the limited purpose of the evidence at the time it was admitted, but concluded that failure to do so did not constitute plain error).

While these decisions were analyzed in the context of § 13-25-129 or CRE 404(b), they offer some guidance with respect to the harmful effect of the testimony regarding the motel incident admitted here pursuant to § 16-10-3801. As to that incident, only two witnesses testified for the prosecution, and only the victim had personal knowledge of what had occurred. She was not offered as an expert and her testimony about the event was very brief, especially when compared to the evidence of the charged offense.

Further, in its final charge to the jury, the trial court gave an instruction that substantially tracked the pattern jury instruction on similar transaction evidence. See CJI-Crim. 4:02 (1983). While that instruction referred back to the court's earlier limiting instruction given when the other daughter testified, the trial court also gave the standard instruction regarding the credibility of witnesses and instructed the jury that "[the defendant cannot be tried or convicted of any act not charged in the information." The information charged conduct that occurred in Colorado between December 1 and 31, 1997, whereas the motel incident had occurred in Texas over three years earlier. Thus, it is highly unlikely that the jury in this case was confused or that it construed the court's final limiting instruction as a reference solely to the other daughter's testimony.

In summary, we agree with defendant- and the People concede-the trial court should have given a limiting instruction before allowing testimony concerning the motel incident. However, we cannot say with fair assurance the trial court's failure to give the limiting instruction so undermined the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction. Accordingly, we conclude there was no plain error and reversal is not required.

Judgment affirmed.

Judge METZGER and Judge KAPELKE concur.


author: Judge CRISWELL.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Guillermo FERNANDEZ, Defendant, Appellant.
    No. 01CA0592.
    Colorado Court of Appeals, Div. III.
    April 11, 2002.
    Certiorari Denied Sept. 16, 2002.

      Ken Salazar, Attorney General, Christine C. Brady, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Ann M. Aber, Deputy State Public Defender, Denver, Colorado, for Defendant, Appellant.
   Opinion by

Judge CRISWELL.

Defendant, Guillermo Fernandez, appeals from the trial court's orders denying three postconviction motions. We affirm, but remand for correction of the mittimus.

In 1999, defendant pled guilty to one count of possessing 450 to 1000 grams of a schedule II controlled substance with the intent to distribute it, a class three felony, and to one count of special offender for importing a schedule II controlled substance into the state.

Pursuant to the parties' stipulation, defendant was sentenced to fourteen years in the Department of Corrections (DOC).

On August 3, 2000, defendant filed, pro se, a Crim. P. 35(c) postconviction motion requesting that he be allowed to withdraw his plea. He alleged three reasons in support of his motion: 1) he had received illegal consecutive sentences on the two counts; 2) the trial court unlawfully imposed restitution without affording him the opportunity to challenge the amount the prosecution requested; and 3) he had newly discovered evidence that the agent involved in testing the cocaine seized from him had been charged with stealing controlled substances that were to be used as evidence.

The trial court gave the prosecution a copy of defendant's motion and reserved ruling on it until after the prosecution filed a response.

On October 2, 2000, the trial court denied the motion in a written order. The court determined that defendant had not received consecutive sentences; that no restitution had been ordered, but only a statutorily required drug surcharge; and that the newly discovered evidence could not serve as the basis for granting a new trial. Defendant appealed that denial.

Thereafter, on November 17, 2000, defendant filed another pro se pleading with the trial court entitled, "Motion for imposition of a modified or alternative sentence or, in the alternative, motion to withdraw plea of guilty." In that motion, defendant essentially argued that the trial court failed to advise him properly concerning mandatory parole.

The trial court refused to rule on defendant's motion, because it lacked jurisdiction over his case while it was on appeal. Hence, defendant voluntarily dismissed his appeal of the October 2 order.

On January 19, 2001, the trial court denied defendant's second motion. The court found that the motion was successive. However, the court also denied the motion on its merits, concluding that defendant had been advised adequately about the consequences of mandatory parole.

On February 5, 2001, defendant filed a third pleading with the trial court, this one seeking reconsideration of the January order. The trial court denied the motion for reconsideration that same day, deferring to its January 19 ruling.

Defendant sought leave to file an appeal of all three orders simultaneously, and his request was granted.

I.

Defendant initially contends the trial court erred in failing to hold an evidentiary hearing and appoint counsel to represent him on his August 3 motion. We disagree.

Crim. P. 35(c)(8) provides, in pertinent part:

Uniess the motion and the files and record of the case show to the satisfaction of the court that the prisoner is not entitled to relief, the court shall cause a copy of said motion to be served on the prosecuting attorney, grant a prompt hearing thereon, and take whatever evidence is necessary for the disposition of the motion. (emphasis supplied)

Defendant argues that, onee the trial court ordered the prosecution to respond to his motion, Crim. P. 35(c)(8) required the court to grant him a hearing on his motion. We are not persuaded.

The thrust of Crim. P. 85(c)(3) to require a hearing unless the motion, files, and record clearly establish the defendant is not entitled to relief See People v. Hartkemeyer, 843 P.2d 92 (Colo.App.1992). If the court determines that a hearing is necessary, the rule requires that a copy of the defendant's motion be served on the prosecuting attorney. However, nothing in the rule prohibits the court from providing a copy of the motion to the prosecuting attorney and then determining that no hearing is necessary, based, in part, upon the People's response.

This conclusion is consistent with the very purpose of holding a hearing in Crim. P. 35(c) proceedings. That purpose is to receive evidence pertinent to allegations that cannot be disposed of by reference to the trial record alone. See Bresnahan v. People, 175 Colo. 286, 487 P.2d 551 (1971). This purpose would not be fulfilled by requiring a hearing in cireumstances, such as those here, where the record alone demonstrates that the motion should be denied.

Here, the People responded to defendant's allegations and relied only on information in the record. Likewise, the trial court referred only to information in the motion, record, and files in denying defendant's motion. We conclude, therefore, that the trial court did not err in failing to grant defendant a hearing on his motion.

In any event, the record clearly establishes that defendant did not receive consecutive sentences, was not assessed restitution, and was not entitled to a new trial based on newly discovered evidence. See People v. Schneider, 25 P.3d 755 (Colo.2001); People v. Gutierres, 622 P.2d 547 (Colo.1981)(trial court's finding that newly discovered evidence would not bring about acquittal at new trial is fatal to success of motion).

Thus, because the trial court properly concluded from the record that defendant was not entitled to relief, it did not err in failing to appoint counsel to represent defendant, see Brinklow v. Riveland, 773 P.2d 517 (Colo.1989), or to hold a hearing on his motion. See People v. Hartkemeyer, supra.

IL

Defendant also contends the trial court erred in denying his second and third motions for postconviction relief. He argues that the trial court failed to advise him adequately about the consequences of mandatory parole. Thus, he asserts, he is entitled to modification of his sentence so that his aggregate sentence to prison, plus mandatory parole, would equal fourteen years. Again, we disagree.

Both defendant's second and third motions were successive, and thus, the trial court properly denied them on that basis. See Turman v. Buckallew, 784 P.2d 774 (Colo.1989).

However, we also agree with the trial court's disposition of the mandatory parole issue on its merits. In Craig v. People, 986 P.2d 951 (Colo.1999), the supreme court addressed the issue whether the defendant was sufficiently apprised of the mandatory parole period. The court must determine whether the record as a whole shows that the defendant was given notice of the maximum length of the mandatory parole period and of the fact that the parole term occurs after, in addition to, or distinct from the period of imprisonment.

Here, defendant received two copies of the Request to Plead Guilty (Rule 11 Advisement), one in Spanish and one in English. Defendant initialed each paragraph in the Spanish version and signed it, indicating that he had read and understood the contents of the form. Further, his counsel executed the statement of counsel, certifying that defendant had been adequately advised about his plea and was entering it knowingly and voluntarily.

Paragraph nine of the English version advised defendant that he "could be required to serve up to five years of parole after serving a sentence." Defendant initialed the corresponding paragraph in the Spanish version. See Craig v. People, supra (form indicating defendant "could" be required to serve up to five years parole after serving a sentence sufficiently put defendant on notice of mandatory parole period).

Additionally, defendant initialed paragraph ten of the Spanish version, which contained the minimum, maximum, and presumptive range sentences for the offenses. For the possession with intent count, defendant was advised that the presumptive range sentence was "4-16 yrs. & 5 yrs. Parole."

Finally, at the providency hearing, the trial court specifically advised defendant concerning mandatory parole. While reviewing the terms of the agreement, the trial court stated that defendant "would receive a sentence of 14 years to the Department of Corrections plus any period of parole that applied to this case." In response to the trial court's questioning, defendant stated that this was his understanding of the agreement.

While specifically advising defendant of the sentencing consequences of his plea, the trial court advised defendant that, absent the plea agreement, he could be sentenced in the range from ten to thirty-two years. However, the agreement provided that defendant would be subject to a fourteen-year sentence to the Department of Corrections. The trial court then added: "Any sentence to the Department of Corrections would also include a mandatory period of parole of five years. And that would be in addition to any time that you actually spent in prison initially." Defendant responded that he understood the possible penalties.

From this record alone, therefore, we conclude that defendant was adequately advised concerning the fact and length of the applicable mandatory parole period. See Craig v. People, supra. Thus, the trial court properly denied defendant's second and third motions.

However, because the mittimus does not reflect the length of the mandatory parole period, the case must be remanded to the trial court to amend the mittimus accordingly. See Craig v. People, supra.

The trial court's orders are affirmed, and the case is remanded to the trial court to amend the mittimus in the manner indicated.

Judge NEY and Judge DAILEY concur.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2001.


author: Judge WEBB.

text:
    Cory B. NIELSON and Jong OK Nielson, Plaintiffs-Appellants and Cross-Appellees, v. Murrill Thomas SCOTT and Sue Ann Scott, Defendants-Appellees and Cross-Appellants.
    No. 01CA0627.
    Colorado Court of Appeals, Div. II.
    April 11, 2002.
    Certiorari Denied Sept. 16, 2002.

      Robert M. Noone, P.C., James H. Delman, Robert M. Noone, Glenwood Springs, Colorado, for Plaintiffs-Appellants and Cross-Ap-pellees.
    William J. deWinter III, P.C., William J. deWinter, Henwood Springs, Colorado, for Defendants-Appellees and Cross-Appellants.
   Opinion by

Judge WEBB.

Plaintiffs, Cory B. Nielson and Jong OK Nielson (buyer or buyers), appeal the trial court's grant of summary judgment in favor of defendants, Murrill Thomas Seott and Sue Ann Scott (seller or sellers), on buyers' fraud and concealment claims. Sellers cross-appeal the trial court's refusal to award them attorney fees. We affirm.

This action involves buyers' April 1, 1997, purchase from sellers of real property known as the Viking RV park in Silt, Colorado. The following facts are undisputed.

On the first visit to the RV park in late 1996, buyer smelled sewage and noticed standing water over the leach field of the septic system. Discussion with seller resulted, during which buyer was told this situation existed because the septic system needed to be enlarged, but enlargement would be relatively easy and cost only about $15,000. Further, seller told buyer the septic system would be fine thereafter.

In early January 1997, buyers' real estate agent submitted the first of four written offers to sellers. In connection with their purchase of the RV park, buyers were represented by an attorney from January 18, 1997, through mid-February 1997. Attorney submitted the next two offers. The first three offers contained provisions that made sellers responsible for remedying problems with the septic system. Sellers rejected all three offers.

During the time that sellers dealt with buyers prior to the sale, sellers had not obtained from the Colorado Department of Health Water Quality Control Division (WQCD) a groundwater discharge permit for the RV park, although they had submitted a permit application in 1995. Hence, the RV park was not in compliance with WQCD standards at the time of the sale.

Sellers never told buyers anything about the need for a permit. Nor did sellers turn over to buyers documents concerning their prior dealings with WQCD, despite buyers having broadly requested all documents pertaining to the RV park as part of their due diligence. After having closed the purchase, buyers learned that compliance would be very costly, probably requiring either connection to the sewage disposal system of the Town of Silt or construction of an individual sewage disposal plant for the RV park.

Buyers' attorney testified that he suggested buyers hire an engineer whom the attorney knew to be familiar with septic and sewer system issues. The engineer had expressed concerns to the attorney about the need to obtain a permit and site approval for expansion of the septic system, along with associated costs and problems. Buyers met with the engineer, but chose not to hire him.

Sellers' counsel referred the attorney to an official with WQCD and provided the attorney with a permit application number, which the attorney found to be inaccurate. Based on his ensuing telephone conversation with the WQCD official, the attorney was aware that: the state had a policy requiring permits, and the RV park might have problems obtaining a permit; the RV park had submitted a permit application in 1995; the official was "suspicious" that the RV park was "not in compliance with state standards"; WQCD contemplated inspecting the RV park late in the summer of 1997; aad WQCD would likely impose significant requirements on the RV park so it would comply with state law.

The attorney thought that his conversation with the WQCD official raised a number of "red flags." He was concerned about potentially significant unresolved issues pertaining to the septic system, relating to both expanding the existing system and otherwise complying with WQCD or county regulations. The attorney understood that, absent an agreement between the parties, if buyers purchased the RV park WQCD would look to them for any future remedial action required by WQCD concerning the septic system.

The attorney deposed did not represent buyers when they made their fourth and final offer, at which time they were without counsel. Sellers accepted this offer, and the parties entered into a contract dated April 1, 1997.

In the contract, buyers acknowledged that their due diligence inspection, including "any environmental matters ... and any matters relating to water and sewage," had been "completed to [their] satisfaction," and that the septic system expansion had not been completed. The contract also contained the following paragraph:

5. Disclaimer. Buyer acknowledges and agrees that Seller has not made any representations, warranties or guaranties of any kind concerning (a) the condition of the Property,. ... Buyer further acknowledges and agrees that: (i) Seller has advised Buyer to obtain an expert third party inspection of the physical condition of the Property, (Mi) Buyer will rely solely on Buyer's own investigation of the Property and (fii) Seller is not liable or bound in any manner by any oral or written statements, representations or information pertaining to the Property furnished by any real estate broker, agent, employee, or other person. Buyer further acknowledges and agrees that to the maximum extent permitted by law, the sale of the Property is made on an "AS IS" condition and basis with all faults....

After the sale closed, buyers filed this action alleging that sellers had fraudulently misrepresented that problems with the septic system could be remedied by the expansion. Buyers further alleged that sellers had concealed the facts that the septic system lacked a permit and was not in compliance with WQCD regulations.

The trial court granted sellers' motion for summary judgment as to both claims. The trial court denied sellers' request for attorney fees under § 13-17-101, C.R.98.2001.

1.

Buyers contend that summary judgment was improper because of disputed factual issues. The trial court concluded that, although the parties offered different interpretations, the material facts as set forth above were not in dispute. We agree with the trial court.

We review of a trial court's decision to grant summary judgment de novo. Summary judgment is appropriate only if the pleadings and supporting documents demonstrate no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The moving party has the burden to establish that no genuine issue of material fact exists; any doubts should be resolved against the moving party. See Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Bd., 901 P.2d 1251 (Colo.1995).

The elements of fraudulent concealment are: (1) concealment of a material fact that in equity and good conscience should be disclosed; (2) knowledge on the part of the party against whom the claim is asserted that such a fact is being concealed; (8) ignorance of that fact on the part of the one from whom the fact is concealed; (4) the intention that the concealment be acted upon; and (5) action on the concealment resulting in damages. See Kopeikin v. Merchants Mortgage & Trust Corp., 679 P.2d 599 (Colo.1984).

The elements of fraudulent misrepresentation are: (1) a fraudulent misrepresentation of material fact; (2) the plaintiffs' reliance on the material representation; (8) the plaintiffs' right or justification in relying on the misrepresentation; and (4) reliance resulting in damages. See M.D.C./Wood, Inc. v. Mortimer, 866 P.2d 1380 (Colo.1994).

Common to both fraudulent concealment and fraudulent misrepresentation is the element of reliance on either the false representation or the assumption that the concealed fact does not exist. See, e.g., Black v. First Federal Savings & Loan Ass'n, 830 P.2d 1103 (Colo.App.1992), aff'd sub nom. La Plata Medical Center Associates, Ltd. v. United Bank, 857 P.2d 410 (Colo.1993); Soneff v. Harlan, 712 P.2d 1084 (Colo.App.1985).

Here, buyers' claims fail because the undisputed evidence shows either they knew of the WQCD issues and other problems with the septic system or they had sufficient notice of problems with the septic system that they should have conducted an investigation, which would have disclosed the WQCD issues.

A.

Generally, knowledge of an attorney is imputed to the client if that knowledge was obtained in the course of the particular transaction for which the attorney was employed by the client. See Bunnell v. Holmes, 64 Colo. 345, 171 P. 365 (Colo.1918). See also Restatement (Second) of Agency § 275 (1958)(principal is treated as having all knowledge that agent has duty to disclose). Buyers do not assert that the attorney acted in collusion with sellers or otherwise adversely to their interests.

The information concerning the septic system and its regulatory status obtained by the attorney clearly related to his representation of plaintiffs and therefore is imputed to them. See Bunnell v. Holmes, supra. Thus, buyers must be deemed to have had knowledge of the WQCD issues concerning the septic system before they purchased the RV park. The attorney's knowledge is imputed to them even though they later proceeded without counsel when making their final offer. See Restatement (Second) of Agency § 275 cmt. e (1958).

B.

If the cireumstances surrounding a transaction would arouse a reasonable person's suspicion, then equity will not relieve a party from the consequences of inattention and negligence in failing to pursue an investigation. See Bassford v. Cook, 152 Colo. 136, 380 P.2d 907 (1963).

Here, even if the attorney's knowledge did not completely illuminate the alleged misrepresentation concerning the septic system and concealment of its regulatory problems, we conclude the information obtained by the attorney clearly showed a need for further investigation. In addition, buyers spoke to the engineer recommended by the attorney. Under the contract, buyers were again advised to use an expert to inspect the RV park, and they agreed to rely "solely on [their] own investigation."

Buyers should have acted on the information that the attorney obtained by investigating thoroughly. Hence, they are charged with all knowledge that they might have obtained about the RV park if they had pursued an investigation with diligence and completeness. See Taylor v. Arneill, 129 Colo. 185, 268 P.2d 695 (1954). See also Cherrington v. Woods, 182 Colo. 500, 290 P.2d 226 (1955). Given the volume of information that the WQCD official provided to the attorney in a single telephone call, and WQCD's status as a public ageney, we conclude that a thorough investigation would have disclosed the alleged misrepresentation and concealment of which plaintiffs complain.

Accordingly, the trial court's summary judgment order dismissing the fraud and concealment claims is affirmed.

IL

Sellers cross-appeal the trial court's denial of their request for attorney fees. Citing § 18-17-101, the trial court concluded that buyers' suit was not frivolous and denied the request. We perceive no abuse of discretion by the trial court.

A trial court's decision whether to award attorney fees under this statute is discretionary and will not be disturbed on

appeal if the evidence supports the ruling. See Fasing v. LaFond, 944 P.2d 608 (Colo.App.1997). We conclude that the trial court did not abuse its discretion in denying attorney fees on the grounds stated.

For the first time on appeal, sellers also claim that they are entitled to attorney fees pursuant to the contract. Generally, a party may not raise an issue for the first time on appeal. See Matthews v. Tri-County Water Conservancy Dist., 200 Colo. 202, 613 P.2d 889 (1980). Therefore, we will not address sellers' claim for attorney fees under the contract.

The judgment is affirmed.

Judge PLANK and Judge JONES concur.


author: Judge DAILEY.

text:
    Dale L. MAJOR, Douglas Brunker, Daniel Hurtado, Jeremy McConnell, Keith Balka, James Seals, Winston Jorgensen, Leon Ellison, and William Robins, Plaintiffs-Appellees and Cross-Appellants, v. CHONS BROS., INC., a Colorado corporation, Defendant, Appellant, and Merit Wrecker, LLC, a Colorado limited liability corporation; and Joey Drawbaugh, Defendants and Cross-Appellees.
    No. 00CA1941.
    Colorado Court of Appeals, Div. III.
    April 11, 2002.
    Rehearing Denied July 25, 2002.

      Davis Graham & Stubbs, LLP, Christine Kessler Lamb, Denver, Colorado, for Plaintiffs-Appellees and Cross-Appellants.
    The Barsness Law Firm, Chad J. Barsness, Carbondale, Colorado, for Defendant-Appellant.
    Brown, Berardini & Dunning, P.C., Brian J. Berardini, Denver, Colorado, for Defendant and Cross-Appeliee Merit Wrecker, LLC.
    Benson & Case, LLP, John Case, Michael P. Dulin, Denver, Colorado, for Defendant and Cross-Appellee J oey Drawhaugh.
   Opinion by

Judge DAILEY.

Defendant, Chons Bros., Inc., appeals a judgment awarding $210,898.04 in damages, attorney fees, and costs to plaintiffs. Plaintiffs cross-appeal summary judgments dismissing their claims against codefendants Merit Wrecker, LLC and Joey Drawbaugh. We affirm.

Plaintiffs, a mechanic and eight tow truck drivers, were formerly employed by Mirage Recovery Service, Inc. Mirage was owned and operated by Chons until 1998, when Merit purchased its trade name and towing business from Chons for $1 million. Draw-baugh was Mirage's general manager both before and after it was sold to Merit; he became a five-percent owner of Mirage after the sale.

Plaintiffs had worked only for Chons; they had not worked for Merit. Nonetheless, they sued Chons, Merit (on a successor liability theory), and Drawbaugh (on an employer theory) for alleged violations of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201, et seq. (2002), and the Colorado Wage Claim Act (CWCA), $ 8-4-101, et seq., C.R.8.2001.

On the parties' cross-motions for summary Judgment, the trial court granted plaintiffs' motion against Chons on an FLSA claim and Merit's and Drawbaugh's motions against plaintiffs. Plaintiffs and Chons subsequently stipulated to the amount of damages, and the court entered judgment thereon, together with an award of liquidated damages, attorney fees, and costs. |

Chons and plaintiffs now appeal the summary judgment orders. In addition, Chons contends that the trial court erred in awarding liquidated damages to plaintiffs, striking its motion for attorney fees, and awarding excessive attorney fees to plaintiffs.

I. Summary Judgment Rulings

Initially, we reject the parties' contentions that the trial court erroneously granted summary judgments adverse to their interests.

Summary judgment permits "the parties to pierce the formal allegations of the pleadings and save the time and expense connected with trial when, as a matter of law, based on undisputed facts, one party could not prevail," Peterson v. Halsted, 829 P.2d 373, 375 (Colo.1992). However, because summary judgment is a drastic remedy, it is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Churchey v. Adolph Coors Co., 759 P.2d 1336, 1840 (Colo.1988).

On appeal, we review summary judgments de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, 901 P.2d 1251, 1256 (Colo.1995).

A. Chons' Appeal

Chons contends that the trial court erred in determining that, as a matter of law, it was not exempt from FLSA overtime requirements. We disagree.

Under the FLSA, an employer must compensate employees not less than one and one-half times their regular rate for hours worked in excess of forty hours per week. 29 U.S.C. § 207(a)(1). Employees may maintain an action against employers who do not comply with this provision to recover unpaid overtime wages. 29 U.S.C. § 216(b).

The FLSA overtime provision applies to tow truck employees, Brennan v. Valley Towing Co., 515 F.2d 100, 104 (9th Cir.1975), excepting only those "with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service" pursuant to 49 U.S.C. § 31502 (2002). 29 U.S.C. § 218(b)(1) (motor carrier exemption}.

The motor carrier exemption extends to those employees who (1) are employed by carriers operating in interstate commerce, and (2) are engaged in activities directly affecting the safety of operation of motor vehicles in the transportation on the public highways of passengers or property in interstate commerce. See Benson v. Universal Ambulance Service, Inc., 675 F.2d 783, 786 (6th Cir.1982). See also 29 C.F.R. § 782.2(a) (2002)(the exemption "depends both on the class to which {the] employer belongs and on the class of work involved in the employee's job").

FLSA exemptions must be construed narrowly, A.H. Phillips, Inc. v. Walling, 324 U.S. 490, 498, 65 S.Ct. 807, 810, 89 L.Ed. 1095, 1101 (1945), and employers bear the burden of showing their applicability. Pugh v. Lindsay, 206 F.2d 43, 46 (4th Cir.1953) ("it is incumbent upon one asserting an exemption to bring himself clearly and unmistakably within the spirit and the letter of its terms").

Here, Chons argues that because it clearly qualified as a carrier engaged in interstate commerce, plaintiffs, as its employees, necessarily engaged in interstate commerce. Chons' argument, however, ignores a critical criterion for the exemption: the nature of the individual employee's job activities. See Dole v. Solid Waste Services, Inc., 7383 F.Supp. 895, 929 (E.D.Pa.1989)(ultimately, the exemption depends upon the character of the employee's work, not upon the nature of employer's activities), aff'd, 897 F.2d 521 3d Cir.1990).

Where the employee's continuing job duties have no substantial direct effect on the safety of operation of motor vehicles in interstate commerce, or where such activities are so trivial, casual, and insignificant as to be de minimis, the exemption does not apply. See 29 C.F.R. § 782.2(b)(3), Opelika Royal Crown Bottling Co. v. Goldberg, 299 F.2d 37, 48 (5th Cir.1962).

Here, plaintiffs' job activities were overwhelmingly conducted in Colorado. The me-chanie worked solely in Colorado. The tow truck drivers regularly worked twelve- to eighteen-hour shifts, six days a week. Of the thousands of "tow tickets" Chons produced documenting tows conducted by the tow truck drivers over the three years preceding this action, only nine involved out-of-state tows.

This evidence, which was not disputed by Chons, leads to but one reasonable inference: plaintiffs' interstate commerce activity was de minimis, and thus, the motor carrier exemption from FLSA requirements did not apply. See Dole v. Solid Waste Services, Inc., supra, 733 F.Supp. at 929 (employees whose duties related to interstate commerce an "infinitesimal" part of the time were not exempt from FLSA protections); Kimball v. Goodyear Tire & Rubber Co., 504 F.Supp. 544, 548 (E.D.Tex.1980)(where drivers made one interstate delivery every three weeks, "the interstate portion of the drivers' work was infinitesimal and thus did not exempt the employer from the FLSA").

Consequently, the trial court properly granted summary judgment against Chons on this issue.

B. Plaintiffs' Cross-Appeal Against Merit

Plaintiffs contend that the trial court erred in granting Merit's motion for summary judgment on their FLSA claim. We disagree.

"The general rule, which is well settled, is that where one company sells or otherwise transfers its assets to another company, the latter is not liable for the debts and liabilities of the transferor." 15 William Meade Fletcher et al., Fletcher's Cyclopedia of the Law of Private Corporations § 4122, at 218 (perm. ed., rev. vol.1999). See Alcan Aluminum Corp. v. Electronic Metal Products, Inc, 837 P.2d 282, 283 (Colo.App.1992). However, various exceptions to this rule exist under state and federal common law. See, e.g., Alcan Aluminum Corp v. Electronic Metal Products, Inc., supra; Steinbach v. Hubbard, 51 F.3d 848, 845-846 (9th Cir.1995).

Because an FLSA claim arises under federal law, the standard for determining successor corporate liability is determined by reference to federal common law. See Steinbach v. Hubbard, supra, 51 F.3d at 845 (applying, in the FLSA context, the federal common law successorship doctrine "that now extends to almost every employment law statute").

Under federal employment law, sue-cessor liability is "designed to grant remedial relief ... to an employee who, solely because of a change in ownership, is unable to obtain similar relief from the predecessor." Musikiwamba v. ESSI, Inc., 760 F.2d 740, 749 (7th Cir1985). See also Holland v. Williams Mountain Coal Co., 256 F.3d 819, 825 (D.C.Cir.2001) (recognizing that successor liability is imposed primarily because "the victim of the predecessor's behavior may be left without a remedy unless recourse against the successor is allowed"); Preyer v. Gulf Tank & Fabricating Co., 826 F.Supp. 1389, 1397 (N.D.Fla.1993)("The main rational[e] underlying the imposition of successor liability is that an employee's statutory rights should not be vitiated by the mere sudden change in ownership of the employer's business.").

Under federal common law, successor liability attaches when (1) the purchasing entity is a bona fide purchaser; (2) the purchasing entity had notice of the potential liability; and (8) the selling entity is unable to provide adequate relief directly. See Equal Employment Opportunity Commission v. SWP, Inc., 153 F.Supp.2d 911, 917 (N.D.Ind.2001)(Equal Employment Opportunity Act); Korlin v. Chartwell Health Care, Inc, 128 F.Supp.2d 609, 613-14 (E.D.Mo.2001)(Age Discrimination in Employment Act); Herrera v. Singh, 118 F.Supp.2d 1120, 1128 (E.D.Wash.2000)(Migrant and Seasonal Agricultural Workers Protection Act). See also Steinbach v. Hubbard, supra, 51 F.3d at 846 (reciting, in FLSA context, the standard as consisting of the last two elements mentioned above plus consideration of "the extent to which the predecessor is able to provide adequate relief directly").

Even assuming there were factual issues pertaining to the first two prongs of this test, plaintiffs have presented no evidence to support the third prong, that Chons is unable to directly provide adequate relief. Consequently, we affirm the trial court's summary judgment. See Ramirez v. DeCoster, 194 F.R.D. 348, 368 n. 38 (D.Me.2000)(quoting Musikiwamba v. ESSI, Inc., supra, 760 F.2d at 750: "it would be grossly unfair, except in the most exceptional cireumstances, to impose successor liability on an innocent purchaser when the predecessor is fully capable of providing relief").

C. Plaintiffs' Cross-Appeal Against Drawbaugh

Plaintiffs contend that the trial court erred in exonerating Drawbaugh from personal liability under the FLSA and the CWCA. We disagree.

Under the FLSA, an employer, including "any person acting directly or indirectly in the interest of the employer in relation to an employee," 29 U.S.C. § 208(d), shall be liable to the employee for unpaid overtime. 29 U.S.C. §§ 207, 216(b).

Similarly, under the CWCA, an employer, including "every person, firm, partnership, association, corporation ... and any agent or officer thereof," § 8-4-101(6), C.R.8.2001, is liable for wages which are earned but unpaid at the time of the employee's discharge when that discharge is at the employer's volition. Section 8-4-104(1)(a), C.R.S.2001.

Plaintiffs assert that under these provisions, an individual may be personally liable to an employee for unpaid wages merely by virtue of his or her status as a corporate officer or agent of the employer.

However, with respect to the FLSA claim, plaintiffs overlook the four-part "economic reality" test, which requires both supervisory authority and some degree of control over the alleged FLSA violation itself before individual liability will attach. See Davis v. B & S, Inc., 38 F.Supp.2d 707, 715-16 (N.D.Ind.1998). Indeed, the cases upon which plaintiffs rely are in accord with this standard. See Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962, 965 (6th Cir.1991)("In deciding whether a party is an employer, 'economic reality' controls rather than common law concepts of agency."); Donovan v. Agnew, 712 F.2d 1509, 1513 (1st Cir.1983)("The Court has not looked to 'technical' common law concepts to define the scope of the employer-employee relationship under the [FLSA], but rather to 'economic reality.' ").

In their reply brief plaintiffs argued that summary judgment was inappropriate under the "economic reality" test. Because arguments may not be raised for the first time in a reply brief, see In re Marriage of Smith, 7 P.3d 1012, 1017 (Colo.App.1999), we decline to address this argument and necessarily conclude that reversal is not warranted on plaintiffs' FLSA claim against Drawbaugh.

With respect to plaintiffs CWCA claim against Drawbaugh, it is not clear that the trial court dismissed it solely on the ground that Drawbaugh could not be held personally liable for unpaid wages. Assuming, however, that this was the exclusive reason for the court's judgment, plaintiffs contend that, unlike the FLSA, the CWCA imposes personal liability based solely on status.

Although the issue is currently pending before the supreme court, see Leonard v. McMorris, 272 F.3d 1295, 1295-96 (10th Cir.2001)(certifying questions to the Colorado Supreme Court pursuant to 10th Cir. R. 27.1 and C.A.R. 21), a division of this court held in Cusimano v. Metro Auto, Inc., 860 P.2d 532, 534 (Colo.App.1992), that under the CWCA a corporation's president and secretary/treasurer could be held personally liable for the payment of wages based solely on their status as high-ranking corporate officers.

Even if the supreme court were to narrow the Cusimano rule, it would not change the outcome of this case. Plaintiffs cannot prevail under even the more favorable Cusima-mo standard, where the issue is whether Drawbaugh's status qualifies him as an "agent" for CWCA liability purposes. Obviously, the CWCA was not intended to impose liability on any and all corporate agents, regardless of responsibility or level of authority. In Cusimano, supra, 860 P.2d at 594, the division recognized that the CWCA's personal liability provision was intended to provide an incentive to high-ranking individuals to ensure that corporations pay wages earned by their employees. Under this rationale, in this context, the term "agent" would have to be interpreted as applying only to those individuals who, although not corporate officers, nonetheless have some authority or responsibility to make decisions regarding the payment or withholding of wages.

Here, Drawbaugh was Chons' general manager. Often, a general manager will have authority or responsibility over wage decisions. See Black's Law Dictionary 972 (7th ed.1999) (ordinarily, a "general manager" has "overall control of a business, office, or other organization, including authority over other managers," and a general manager is "usu[ally] equivalent to a president or chief executive officer of a corporation"). However, because this is not invariably the case, personal liability may not attach to Drawbaugh simply because of his job title. Instead, the inquiry must focus on whether Drawbaugh's status in Chons' business was such that he had some authority or responsibility to affect Chons' wage payment policies.

When viewed in the light most favorable to plaintiffs, the evidence reveals that, although Drawbaugh was responsible for running various aspects of Chonsg' business on a day-today basis-including the scheduling of overtime work-he too was at all times an employee of Chons, subject to the same compensation scheme as plaintiffs, and he had been given no authority or responsibility over Chong' wage payment policies.

Under these circumstances, we conclude that Drawhaugh did not qualify as an "agent" for CWCA personal liability purposes, and thus he was not personally liable to plaintiffs for unpaid wages. Consequently, the trial court properly dismissed plaintiffs' CWCA claim against him.

IL. Liquidated Damages

Next, Chons contends that the trial court erred in requiring it to pay liquidated damages to plaintiffs. We are not persuaded.

Any employer who violates § 207 of the FLSA "shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation ... and in an additional equal amount as liquidated damages." 29 U.S.C. § 216(b).

Although § 216(b) indicates that liquidated damage awards are usually mandatory, a trial court may deny such an award if it is satisfied that the employer acted in good faith and upon reasonable grounds for believing it was not violating the FLSA. 29 U.S.C. § 260 (2002). See, e.g., Burnley v. Short, 730 F.2d 136, 140 (4th Cir.1984). To be relieved of liquidated damages, an employer must show that it took affirmative action to determine its FLSA lability. See Burgess v. Catawba County, 805 F.Supp. 341, 350 (W.D.N.C.1992)(fact that employer's conduct was not willful does not necessarily mean it was in good faith).

However, even if a trial court were to determine that an employer's actions were taken in good faith and based on reasonable grounds, the trial court nonetheless retains discretion to award liquidated damages. Heidtman v. County of El Paso, 171 F.3d 1038, 1042 (5th Cir.1999).

Here, Chons argues that it acted in good faith and upon a reasonable belief that plaintiffs were exempt from FLSA overtime pay requirements, based on: 1) Drawbaugh's statement that he was advised by a Department of Labor employee that tow truck drivers were not covered by the FLSA; and 2) the Department of Labor's failure to audit Chonsg' compensation scheme for tow truck drivers while it was investigating Chong compensation scheme for dispatchers.

However, because the record contains no evidence that Chons took any affirmative steps to ensure it complied with the FLSA, we conclude that the trial court acted within its discretion in awarding liquidated damages to plaintiffs See, e.g., Renfro v. City of Emporia, 948 F.2d 1529, 1540 (10th Cir.1991)(absent additional efforts to obtain a written opinion, simple phone call to Department of Labor administrative assistant was insufficient to compel a finding of reasonable grounds to believe city was complying with FLSA). See also Avitia v. Metropolitan Club of Chicago, Inc., 49 F.3d 1219, 1223 (7th Cir.1995)(in FLSA cases, "[djouble damages are the norm, single the exception").

Consequently, we find no error on this ground.

III. Chons' Attorney Fees

Chons also contends the trial court erred in striking its request for attorney fees under the CWCA as untimely under C.R.C.P. 59(a) and 121 § 1-22. We disagree.

In support of its position, Chons cites several appellate decisions recognizing that a trial court has discretion to consider belated requests for attorney fees. See, e.g., In re Marriage of Wright, 841 P.2d 358 (Colo.App.1992). However, to say that a court has discretion to consider a belated request for fees does not mean that the court must do so. See Municipal Subdistrict, Northern Colorado Water Conservancy District v. OXY USA, Inc., 990 P.2d 701, 710 (Colo.1999)(quoting People v. Milton, 732 P.2d 1199, 1207 (Colo.1987); "To say that a court has discretion . means that it has the power to choose between two or more courses of action and is therefore not bound in all cases to select one over the other.").

Here, Chons filed its motion for attorney fees twenty-four days after the expiration of the fifteen-day period prescribed by C.R.C.P. 121 § 1-22. Chons neither requested an extension of time within which to request fees nor offered an excuse for its tardiness. Under the cireumstances, we discern no abuse of the trial court's discretion in striking Chons' belated motion.

IV. Plaintiffs' Attorney Fees

Finally, Chons contends that the trial court awarded plaintiffs exeessive attorney fees by including fees for work on unsuccessful claims and claims against the other defendants. We perceive no error.

Under the FLSA, prevailing plaintiffs are entitled to recover reasonable attorney fees and costs. 29 U.S.C. § 216(b). The determinatio® of a reasonable amount of fees is a question of fact, and the trial court's finding will not be disturbed on appeal unless it is patently erroneous and unsupported by the evidence. Porter v. Castle Rock Ford Lincoln Mercury, 895 P.2d 1146, 1149 (Colo.App.1995).

Here, although plaintiffs prevailed on but one of seven claims, namely an FLSA claim, that claim was the main focus of the case from the outset. In their fee application, plaintiffs attempted to exclude time spent on unsuccessful claims and on the relatively few FLSA issues that related exclusively to the other defendants. The trial court serutinized plaintiffs' itemized fee request and reduced it in a number of instances where plaintiffs had inadvertently included time expended either on unsuccessful claims or claims against other defendants.

Because (1) plaintiffs prevailed on their FLSA claim against Chons; (2) plaintiffs' fee application (and the trial court's serutiny thereof) apportioned out unrecoverable fees, see Koontz v. Rosener, 787 P.2d 192 (Colo.App.1989) (apportioning fees between claims); Newport Pacific Capital Co., v. Waste, 878 P.2d 136, 140 (Colo.App.1994)(apportioning fees among multiple parties); (8) the trial court considered proper factors in making the award, see Hartman v. Freedman, 197 Colo.275, 281, 591 P.2d 1318, 1322 (1979)(listing factors); Fegley v. Higgins, 19 F.3d 1126, 1134 (6th Cir.1994)(discussing purpose of FLSA attorney fee awards); and (4) the record supports the award, we decline to disturb that award on appeal.

To the extent that Chons complains that the trial court did not totally exclude fees relating to an unsuccessful part of plaintiffs' FLSA allegations, Chons did not argue this point to the trial court. Consequently, we decline to address it on appeal. See Flores v. American Pharmaceutical Services, Inc., 994 P.2d 455, 458 (Colo.App.1999)("An appellate court will not consider issues, arguments, or theories not previously presented in trial proceedings.").

Accordingly, the judgment is affirmed.

Judge NEY and Judge ROY concur.


author: Judge CASEBOLT.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Edward BALKEY, Defendant-Appellant.
    No. 01CA0018.
    Colorado Court of Appeals, Div. V.
    May 23, 2002.
    Certiorari Denied Sept. 16, 2002.

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

Judge CASEBOLT.

Defendant, Edward Balkey, appeals the judgment of conviction entered upon a jury verdict finding him guilty of reckless vehicular homicide. We affirm.

While driving alone in his van, defendant crossed the centerline of a highway and a hit an oncoming car head-on, killing its driver. Defendant had no drugs or alcohol in his system, his van was mechanically sound, and the highway was clear and dry when the collision occurred.

A motorist who was following defendant testified for the prosecution at trial that, while defendant's speed was not excessive, he had attempted repeatedly to pass cars in no-passing zones and had nearly caused an accident shortly before the collision occurred.

Defendant testified that he was tired on the day of the accident. He could not recall the collision, but concluded that he must have been asleep when it occurred.

The trial court instructed the jury on careless driving resulting in death under § 42-4-1401(2), C.R.S.2001, as a lesser included offense of reckless vehicular homicide. Defense counsel asserted in closing argument that defendant could not be guilty of vehicular homicide because he was asleep when the collision occurred and thus did not act with conscious disregard of a substantial and unjustifiable risk within the meaning of § 18-1-501(8), C.R.$.2001.

During its deliberations, the jury sent a note indicating that it would like to see the testimony of the motorist who had observed defendant's driving and the accident. Over defendant's objection that providing the transcript would unduly emphasize that testimony, the trial court provided the jury with the twelve-page transcript of the witness's direct and cross-examination.

I.

Defendant contends that the trial court erred in dealing with the jury's request to see the testimony of the prosecution witness. We disagree.

The reading of all or part of the testimony of one or more of the witnesses at trial at the specific request of the jury during its deliberations is discretionary with the trial court. Settle v. People, 180 Colo. 262, 504 P.2d 680 (1972). In exercising its discretion, the court should consider whether reading back certain testimony would give it undue weight or emphasis, the difficulty involved in reading back the testimony, whether the jury's request is reasonably well-focused, and the amount of time the procedure would consume. See People v. Coit, 961 P.2d 524 (Colo.App.1997). We review the trial court's response to the jury's request under an abuse of discretion standard. See Franklin v. People, 734 P.2d 183 (Colo.App.1986).

A.

Defendant first asserts that the trial court abused its discretion because the review improperly bolstered the testimony and it was cumulative and unduly prejudicial and therefore inadmissible under CRE 403. In addition, he contends the jury's request was not reasonably specific. We disagree.

First, the "evidence" to which defendant objects consisted of previous testimony that had already been admitted at trial. The witness had observed defendant's driving for some distance and saw the accident happen. No one else had the information that he possessed, except defendant. Hence, the evidence itself was not cumulative. Moreover, while the testimony had already been once received, its repetition to the jury during its deliberations was not "needless" within the meaning of CRE 403.

Furthermore, when presented with appropriate safeguards, such repeated testimony is not cumulative or unduly prejudicial, nor does it improperly bolster the witness's testimony. See Settle v. People, supra.

In addition, the jury's request was quite specific and well focused. It did not seek, for example, to review all the testimony concerning the accident regardless of the witness giving it. Such a request could indeed have required piecemeal review and possibly could have overlooked some record evidence. Instead, the jury wanted to review only the motorist's testimony. And, the fact that the entire transcript consisted of only twelve pages defeats any contention that the request was too broad or that complying with it would be too time consuming.

B.

Relying in part upon People v. Montoya, 773 P.2d 628 (Colo.App.1989); People v. Talley, 824 P.2d 65 (Colo.App.1991); and 3 ABA Standards for Criminal Justice Standard 15-5.2 (3d ed.1996), defendant asserts that the trial court abused its discretion when it provided the jury with a transcript of the testimony instead of reading it back in open court. We disagree.

1.

We do not find Montoya, Talley, and the ABA Standard persuasive in this case.

Standard 15-5.2 provides, in pertinent part, that if the jury requests a review of certain testimony, the court should have the requested parts of the testimony submitted to the jury in the courtroom. It further provides that the court need not submit testimony beyond that specifically requested by the jury, but that the court may also have the jury review other testimony relating to the same factual issue so as not to give undue prominence to the testimony requested.

In Montoya, the defendant asserted that the trial court had erred in allowing the jurors during their deliberations to have unrestricted, unsupervised access to a videotape admitted into evidence. On the tape, an eyewitness made statements concerning the perpetrator's identity that were inconsistent with his trial testimony. A division of this court reasoned that the videotape, offered for proof of the statements made by the witness, was virtually indistinguishable from a deposition because it was testimonial evidence. Noting that depositions should not be reviewed by a jury on an unsupervised basis, the division held that the trial court had erred in allowing unrestricted and unsupervised access to the videotaped statement during the jury's deliberations without adopting a controlled procedure to prevent undue weight being accorded to it.

In Talley, which relied upon Montoya, another division of this court held that it was reversible error to allow the jury to have unrestricted access, without providing adequate safeguards, to an audiotape of a pretrial interview with the child victim, which was inconsistent with the child's trial testimony and other pretrial statements.

Montoya and Talley were driven, in part, by the existence of inconsistent witness statements and the concern that the jury might exclusively believe the version represented by the videotape or audiotape and ignore other contradictory statements made by that particular witness. Here, in contrast, the motorist made no inconsistent statements. Instead, the motorist's trial testimony was the only statement of his that was introduced, and he was not impeached. Hence, there was no danger that the jury might place greater emphasis upon or believe only one version of the motorist's statement and discard his other statements.

The divisions in Montoya and Talley were likewise concerned that the jury might give undue emphasis to one item and ignore the balance of the evidence. Here, in contrast, the jury specifically requested the testimony of the involved witness. Thus, the jurors had already focused upon that particular evidenee. See State v. Jenkins, 845 S.W.2d 787, 792 (Tenn.Crim.App.1992)(the court does not emphasize the evidence by permitting the jury to rehear what they wish to hear in carrying out their task of determining the facts in a case; if any emphasis is placed on the evidence, it is placed there by the jury, not the court).

Furthermore, the trial court here gave a supplemental instruction to the jury just before furnishing the transcript, stating that the jury should "consider all the evidence that is before [it] and the instructions of the court." The elemental instructions previously given echoed the admonition that the jury should consider all the evidence, and another instructed the jury to assess witness credibility in reaching its verdict.

In addition, while not specifically expressed in the opinions, it appears that the Montoya and Talley divisions were concerned that out-of-court statements such as depositions, as opposed to live testimony presented in the courtroom, could be accorded special weight and given undue emphasis. Such a concern is not present here.

2.

While one Colorado case holds that it is not an abuse of discretion to refuse a jury's request for a transcript, see Franklin v. People, supra, no case holds that transcripts may never be provided. We fail to discern any meaningful distinction between reading back testimony in open court and providing the jury with a written transeript of that testimony.

The federal circuits have allowed trial courts to give transcripts to the jury. In United States v. Bertoli, 40 F.3d 1384 (3d Cir.1994), the court found no material difference between sending the jury written transcripts of trial testimony and reading the testimony back in court. On the one hand, the court recognized that when testimony is read back to the jury, the court can ensure that all the jurors are present when the testimony is read, which could not be done in the privacy of the jury room. On the other hand, the court also noted that when testimony is read back, an inattentive juror might be persuaded unduly by an attentive juror's version of the read-back testimony. Moreover, a juror's mishearing of read-back testimony cannot be corrected by a second look. See also United States v. Lujan, 986 F.2d 406 (9th Cir.1991)(trial court's decision to provide trial transcript to jury reviewed for abuse of discretion; trial court could properly allow transcript of witness's testimony to be given to jury during deliberations if it provided counsel an opportunity to note inaccuracies in the transcript, cautioned jury that the transeript was not to serve as a substitute for juror memory or for assessment of eredibility, admonished the jury to weigh all the evidence and not focus unduly on any portion of the trial, and instructed that the transeript was not authoritative and should not prevail over the jurors' memories); United States v. Betancourt, 838 F.2d 168 (6th Cir.1988)(furnishing of transcripts to jury well within trial court's discretion); cf. United States v. Hernandez, 27 F.3d 1403 (9th Cir.1994)(unlike in Lujan, trial court permitted undue emphasis when it failed to admonish the jury to weigh all the evidence and to instruct that the transcript was not authoritative, and the court also abused its discretion by refusing defense counsel's request to review the tran-seript for accuracy).

In United States v. Escotto, 121 F.3d 81 (2d Cir.1997), the court surveyed the decisions of various courts addressing this issue. It concluded that providing written transcripts to the jury is a more efficient method than reading back lengthy portions of testimony. The court also noted that the jurors' opportunity to turn the pages of transcripts, some rapidly and some leisurely, will often be preferable to a verbatim and usually unani-mated rereading of testimony. Accordingly, the court concluded that the trial court had not erred in providing transcripts of witness testimony instead of having the requested testimony read back to the jury.

3.

We are persuaded by the rationale of the federal cases allowing transcripts to be given to the jury when a review of trial testimony is requested, and we adopt it here. We also conclude that the trial court should exercise its discretion to employ adequate safeguards against the jury giving undue weight to the requested testimony. See Settle v. People, supra; People v. Montoya, supra. The safeguards may include, but are not limited to, providing counsel an opportunity to note inaccuracies in the transcript, cautioning the jury that the transcript is not to serve as a substitute for juror memory or for assessment of credibility, admonishing the jury to weigh all the evidence and not to focus unduly on any portion of the trial, and instructing the jury that the transcript is not completely authoritative and should not prevail over the jurors' memories. The court may also give the jury a transcript of opposing or contrary testimony. See 3 ABA Standards for Criminal Justice Standard 15-2. We decline, however, to create a rigid test that mandates or formulates a specific rule.

4.

Applying those principles here, we first note that defendant did not ask for an opportunity to note inaccuracies in the transcript, nor did he ask that the jury be cautioned that the transcript was not to serve as a substitute for memory or for assessment of credibility. He did not request an admonition that the jury should weigh all the evidence and not focus unduly on any portion of the trial, or an instruction advising that the transcript was not authoritative and should not prevail over the jurors' memories. Defendant also did not ask to submit any possibly controverting testimony, such as his own. See United States v. Escotto, supra (better practice to lessen the risk of undue emphasis is to give a precautionary instruction, such as reminding the jury to consider all the evidence without unduly emphasizing any portion of it; however, even though trial court had not given such an instruction, to the extent defendant was arguing that was error, argument was rejected because it was not raised in trial court).

As previously noted, however, here the court sua sponte informed jurors just before it delivered the transcript that they should consider all the evidence together with the instructions the court had given, one of which instructed that the jury should consider all the facts and cireumstances that affected the credibility of each witness. These instructions, which we presume the jury followed absent any contrary indication, reduced the danger that the jurors would place undue emphasis on the transcript. See People v. Cardenas, 25 P.3d 1258 (Colo.App.2000).

Moreover, the record reflects that the court asked the court reporter how long it would take to prepare both an uncorrected and a corrected transcript of the testimony. By all indications, the reporter furnished a corrected copy for the jury's use. And, there is no indication in the record that the trial court did not review the transcript before providing copies to the jury.

To the extent that the record is silent as to whether counsel reviewed the transcript for accuracy, even if we accept defendant's contention that the lack of such an opportunity is error, we cannot presume that any error occurred here. See People v. Bishop, 7 P.3d 184 (Colo.App.1999).

What is more, in a discussion with counsel before responding to the jury's request, the trial court specifically noted that it would consider the concerns about overemphasis, the time required to furnish the testimony, and the jury's desire to have it. It noted that the requested testimony was brief, that the case had lasted only two days, that the testimony contained information that was helpful to both sides, and that a corrected transcript would be available within fifteen minutes. It also noted the trend in this state toward liberalizing juror participation in trials and providing the jury with information it requests. See Supreme Court Committee on Effective and Efficient Use of Juries, With Respect to the Jury (Feb.1997)(advocating juror notetaking, use of trial notebooks, and permitting jurors to submit written questions to witnesses); see also Crim. P. 16(f); C.R.C.P. 47(m), (t); CJI-Civ. 4th 1:7, 1:7(A) (1998)(allowing same).

Indeed, in this case jurors were given individual trial notebooks and were allowed to take notes throughout the trial. Hence, even had the court simply read back the testimony, the jurors could have taken notes about it. Furnishing the transcript minimized the possibility that the jurors might rely upon incomplete or incorrect notes or recollections of the testimony.

Nor does the fact that the motorist's testimony was the primary inculpatory evidence against defendant require a different result. See State v. Jenkins, supra (if witness's testimony was the "linchpin" of the state's case as defendant asserted, it was understandable that the jury might focus on that testimony and desire to remove any existing doubt as to that testimony; given the jury's request, the trial court did not place undue emphasis on the testimony by allowing the jury to hear it again).

Under these cirenmstances, we conclude that the trial court did not abuse its discretion.

IL

Defendant asserts that the felony offense of reckless vehicular homicide under § 18-3-106, C.R.S.2001, is unconstitutional because it proscribes the same conduct as the misdemeanor offense of careless driving resulting in death. However, because defendant did not raise this issue in the trial court, we will not consider it here. See People v. Allen, 43 P.3d 689 (Colo.App.2001)(refusing to consider the same argument made for the first time on appeal with respect to the attempted reckless manslaughter and reckless endangerment statutes); People v. Boyd, 30 P.3d 819 (Colo.App.2001)(declining to consider equal protection claim raised for the first time on appeal).

The judgment is affirmed.

Judge DAVIDSON and Judge NIETO concur.