source: Caselaw Access Project

author: STEWART, Judge. MANNHEIMER, Judge,

license: Public Domain

text:
    Lottie R. BEASLEY, Appellant, v. STATE of Alaska, Appellee.
    No. A-8289.
    Court of Appeals of Alaska.
    Oct. 17, 2002.

      Lori M. Bodwell, Law Office of Lori Bod-well, Fairbanks, for Appellant.
    Teresa L. Foster, District Attorney, Fairbanks, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

STEWART, Judge.

Lottie R. Beasley, a first felony offender, pleaded no contest to third-degree assault, a class C felony. The superior court found that several statutory aggravating factors from AS 12.55.155(c) applied by analogy and imposed a 3 1/2 year term with 1 year suspended, a sentence in excess of the Austin limit. Beasley argues that AS 12.55.125(k) bars the superior court from imposing a sentence of imprisonment, whether suspended or unsuspended, that exceeds the presumptive sentence for a third felony offender We reject Beasley's interpretation of the statute and conclude that AS 12.55.125(k) contains no such restriction. Therefore, we affirm Beasley's sentence.

On June 1, 2001, the Alaska State Troopers were contacted because two of Beasley's boys, G.B. and KD., ran away from home and complained to a neighbor that Beasley was assaulting them. 'The boys' complaints led to an investigation by the Troopers that culminated in a grand jury indictment. The grand jury charged Beasley with one count of second-degree assault, and seven counts of third-degree assault. The State also filed an information charging Beasley with six counts of fourth-degree assault. These allegations charged Beasley with assaulting the two boys who ran away and H.G., another sibling. Ultimately, the State filed an information supplanting the indictment and the first information. This information charged Beasley with one consolidated count of third-degree assault against all three victims occurring over the course of three months. Beasley pleaded no contest to this consolidated count.

Superior Court Judge Mary E. Greene found that several aggravating factors from AS 12.55.155(c) applied by analogy to Beasley's sentencing: (c)(5) (Beasley knew or reasonably should have known that her victims were particularly vulnerable); (c)(9) (Beasley knew that her offense involved more than one victim); (c)(10) (Beasley's conduct was among the most serious within the definition of the offense); (c)(18)(A) (Beasley and her victims were living together in one social unit); and (c)(18)(C) (Beasley's assault was a domestic violence assault committed in the presence of a child under 16 who was living in the residence where the crime occurred). Judge Greene imposed 3 1/2 years' imprisonment with 1 year suspended.

Beasley claims that under AS 12.55.125(k) her sentence is illegal. Beasley argues that under this statute, the superior court could impose no more than a 3-year term whether the term is suspended in whole or in part. This claim presents a question of statutory interpretation.

"The guiding principle of statutory construction is to ascertain and implement the intent of the legislature or agency that promulgated the statute or regulation." Alaska courts apply a sliding seale approach to statutory interpretation: to determine the meaning of a statute we look to its legislative history, even if its language is plain on its face. But "the plainer the meaning of the language of the statute, the more convincing any contrary legislative history must be." When a statute's meaning appears clear and unambiguous, the party urging another meaning "bears a correspondingly heavy burden of demonstrating contrary legislative intent.

AS 12.55.125(k) was first enacted by chapter 79, § 25, SLA 1992. The genesis of this law was 1992 House Bill 396. In part, this bill was a response to this court's decision in Buoy v. State. In Buoy, we held that before a sentencing judge can exceed the Austin limit, the State must prove statutory aggravating factors by clear and convincing evidence. In hearings before the House Judiciary Committee, representatives from both the Department of Law and the Department of Public Safety told the committee that the intent of the bill was to overturn Buoy and require that aggravating factors be proved by a preponderance of the evidence.

But the House Judiciary Committee amended the bill and proposed the enactment of a new subsection to AS 12.55.125, subsection (k), that provided:

(k) A first felony offender convicted of an offense for which a presumptive term of imprisonment is not specified under this section may not be sentenced to a term of unsuspended imprisonment that exceeds the presumptive term for a second felony offender convicted of the same crime unless the court finds by clear and convincing evidence that an aggravating factor under AS 12.55.155(c) is present, or that cireum-stances exist that would warrant a referral to the three-judge panel under AS 12.55.165.

Thus, in its amended form, Committee Substitute for HB 396(Jud), the bill expressly adopted the Buoy decision.

The Senate Judiciary Committee later amended and re-organized CSHB 896. The final version of the bill, Senate Committee Substitute for CSHB 396, preserved the House Judiciary Committee's amendment adopting subsection (k). This section passed the legislature as chapter 79, § 25, SLA 1992.

AS 12.55.125(k) was amended in 1999. The source of the amendment was 1999 Senate Bill 3. The entire bill as proposed enacted several changes to increase penalties for the homicide of a child. The final form of the bill was contained in the House Committee Substitute for CSSB 3(FIN). In a hearing before the House Finance Committee, a staff member of the bill's prime sponsor, Senator Halford, provided a sectional analysis of the bill and testified that the section of the bill amending AS 12.55.125(k) allowed a sentencing court to sentence an offender convicted of criminally negligent homicide of a child under 16 to a longer sentence than the presumptive sentence for a second or third felony offender convicted of the same crime. The bill passed and the section amending AS 12.55.125(k) into its present form was included as chapter 54, § 11, SLA 1999.

AS 12.55.125(k) now provides:

(k) A first felony offender convicted of an offense for which a presumptive term of imprisonment is not specified under this section
(1) may be sentenced to a term of un-suspended imprisonment that exceeds the presumptive term for a second or third felony offender convicted of the same crime if the offender is convicted of erimi-nally negligent homicide and the victim is a child under the age of 16;
(2) except as provided in (1) of this subsection, may not be sentenced to a term of unsuspended imprisonment that exceeds the presumptive term for a second felony offender convicted of the same crime unless the court finds by clear and convincing evidence that an aggravating factor under AS 12.55.155(c) is present, or that circumstances exist that would warrant a referral to the three-judge panel under AS 12.55.165.

Beasley argues that when subsections (1) and (2) are read together, one must conclude that the only cireumstance when a court sentencing a first felony offender is authorized to exceed the presumptive term for a third felony offender is contained in (k)(1). Beasley claims that sole circumstance occurs when a court is sentencing an offender for the eriminally negligent homicide of a child under 16. But on its face, subsection (k)(ZQ) contains the general rule that requires a sentencing judge to find a statutory aggravating factor or an extraordinary circumstance warranting a referral to a three-judge sentencing panel before exceeding the presumptive term for a second felony offender. The 1999 amendment did not alter this general rule and the legislative history of the 1999 amendment does not contain an indication that the legislature intended to further limit the authority of a sentencing judge in the normal case. Subsection (k)(1) enacted an exception to this general rule for the erimi-nally negligent homicide of a child under 16 by authorizing a court sentencing a first felony offender convicted of this erime to exceed the presumptive term for a second or a third felony offender without requiring the sentencing judge to find a statutory aggravating factor or extraordinary cireumstances.

As the proponent of an interpretation different than what appears on the face of the statute, Beasley "bears a correspondingly heavy burden of demonstrating contrary legislative intent." But Beasley has not pointed to any legislative history showing that the purpose of the amendment to subsection (k) that was contained in chapter 54, § 11, SLA 1999 was to cap the sentencing range for a first felony offender at the presumptive term for a third felony offender. Instead, the overall underlying purpose of S.B. 3 appears to be the establishment and authorization of greater penalties for the homicide of children under the age of 16.

When sentencing a first felony offender in the normal case, subsection (k) does require a sentencing judge to find statutory aggravating factors or extraordinary circumstances before imposing an unsuspended term of imprisonment exceeding the presumptive term for a second felony offender. But we conclude that subsection (k) does not constrain a sentencing judge to impose less than the presumptive term for a third felony offender when the judge finds that the State has proven that a statutory aggravating factor or factors apply.

Beasley's sentence is AFFIRMED.

MANNHEIMER, Judge,

concurring.

This case requires us to construe what the legislature intended when they added subsection (1) to AS 12.55.125(k) in 1999. This statute reads:

(k) A first felony offender convicted of an offense for which a presumptive term of imprisonment is not specified under this section
(1) may be sentenced to a term of unsuspended imprisonment that exceeds the presumptive term for a second or third felony offender convicted of the same crime if the offender is convicted of criminally negligent homicide and the victim is a child under the age of 16;
(2) except as provided in (1) of this subsection, may not be sentenced to a term of unsuspended imprisonment that exceeds the presumptive term for a see-ond felony offender convicted of the same crime unless the court finds by clear and convincing evidence that an aggravating factor under AS 12.55.155(c) is present, or that cireumstances exist that would warrant a referral to the three-judge panel under AS 12.55.165.

Beasley argues that when the legislature enacted subsection (1) in 1999, the legislature intended to alter the meaning of the preexisting portion of the statute-the part that is now subsection (2). Beasley contends that, under the current version of the statute, when a first felony offender is convicted of any felony governed by presumptive sentencing other than criminally negligent homicide involving a child, the offender's unsuspended term of imprisonment can not exceed the presumptive term that applies to third felony offenders.

This claim is moot in Beasley's case. Both AS 12.55.125(k)(1) and (k)(2) limit a defendant's unsuspended term of imprisonment. Beasley's unsuspended term of imprisonment is 2% years-less than the 3-year presumptive term that applies to third felony offenders convicted of the same offense. Thus, even under Beasley's construction of the statute, her sentence would be proper.

Even though Beasley's claim is moot, my colleagues have decided to address the merits of that claim. I concur in their conclusion that Beasley's interpretation of the statute is mistaken.

In 1992, the Alaska legislature enacted AS 12.55.125(k)-the portion of the statute that is now AS 12.55.125(k)(2). This portion of the statute declares that, in cases not governed by presumptive sentencing, a first felony offender "[can] not be sentenced to a term of unsuspended imprisonment that exceeds the presumptive term for a second felony offender convicted of the same crime unless the court finds by clear and convincing evidence that an aggravating factor under AS 12.55.155(c) is present, or that cireum-stances exist that would warrant a referral to the three-judge panel under AS 12.55.165."

Both the wording of this provision and the minutes of the House Judiciary Committee from 1992 indicate that the legislature enacted this law because they wished to codify the sentencing rule that this Court first announced in Austin v. State and that we later clarified in Tazruk v. State and Bregenoff v. State. The Austin/Tazruk/Brezenoff rule states that, when an offense that is subject to presumptive sentencing does not specify a presumptive term for a first felony offender, the unsuspended portion of a first felony offender's term of imprisonment should be more favorable than the presumptive term that applies to second felony offenders, unless the State proves statutory aggravating factors (i.e., the aggravating factors listed in AS 12.55.155(c)) or non-statutory aggravating factors (ie., the type of extraordinary circumstances that would warrant referral of the defendant's case to the statewide three-judge sentencing panel under AS 12.55.165).

Since 1992, we have repeatedly and consistently interpreted this statutory language as codifying the Austin/Tazruk/Brezenoff rule (with the slight difference that the Austin rule calls for a first offender to receive an unsuspended term of imprisonment more favorable than the presumptive term for see-ond felony offenders, while the statute calls for a first felony offender to receive an un-suspended term no greater thon the presumptive term for second felony offenders). I particularly note that in Petersen v. State, 930 P.2d 414, 487 (Alaska App.1996), we applied AS 12.55.125(k) to a first felony offender who was convicted of a class C felony and who received 5 years' imprisonment with 2 years suspended-i.e., a less favorable sentence than the 3-year presumptive term for a third felony offender.

In 1999, when the legislature was discussing the provision that eventually became subsection (1) of AS 12.55.125(k) , the legislature was told that this provision would allow courts to impose higher unsuspended sentences on defendants convicted of criminally negligent homicide involving children. But no one ever suggested that this provision would impose new restrictions on the courts' authority to sentence defendants convicted of other felonies, or that the provision would modify the series of court decisions interpreting the language that remained in subsection (2).

Given this backdrop, I agree with my colleagues that AS 12.55.125(k)(1) was intended to abrogate the Austin rule for first felony offenders convicted of criminally negligent homicide involving children younger than 16. That is, the legislature intended to authorize courts to sentence these offenders to unsus-pended terms of imprisonment equal to or greater than the presumptive term for third felony offenders convicted of the same crime even when the State did not prove aggravating factors under AS 12.55.155(c) or extraordinary civreumstances as defined in AS 12.55.165. The legislature did not intend to alter the meaning of AS 12.55.125(k)(2) by imposing a new restriction on the unsuspend-ed terms of other first felony offenders.

      . AS 11.41.220(a), (b).

      . See Wylie v. State, 797 P.2d 651, 663 (Alaska App.1990).

      . See Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981) (A first felony offender should ordinarily receive a more favorable sentence than the presumptive term for a second felony offender convicted of the same class of crime).

      . AS 12.55.125(e)(2).

      . See Wylie v. State, 797 P.2d 651, 663 (Alaska App.1990).

      . Millman v. State, 841 P.2d 190, 194 (Alaska App.1992).

      . See Progressive Ins. Co. v. Simmons, 953 P.2d 510, 516 (Alaska 1998).

      . Id. (citing State v. Alex, 646 P.2d 203, 208-09 n. 4 (Alaska 1982)).

      . University of Alaska v. Geistauts, 666 P.2d 424, 428 n. 5 (Alaska 1983).

      . 818 P.2d 1165 (Alaska App.1991).

      . Id. at 1167-68.

      . See House Judiciary Committee hearing on H.B. 396 (January 17, 1992) (testimony by Gayle Horetski, Deputy Commissioner of Public Safety); (January 24, 1992) (testimony of Margot Knuth, Assistant Attorney General).

      . See House Judiciary Committee hearing on S.B. 3 (March 3, 1999) (testimony by Juli Lucky, Staff, Senator Rick Halford).

      . See House Finance Committee hearing on S.B. 3 (May 10, 1999) (testimony by Juli Lucky, Staff, Senator Rick Halford).

      . University of Alaska v. Geistauts, 666 P.2d 424, 428 n. 5 (Alaska 1983).

      . See House Judiciary Committee hearing on S.B. 3 (March 3, 1999) (testimony by Juli Lucky, Staff, Senator Rick Halford (The purpose of the prime sponsor of the bill, Senator Halford, is to send the message "if you kill a child you will go to jail for a long time.").

      . See SLA 1992, ch. 79, § 25.

      . See Minutes of the House Judiciary Committee for January 15, 1992, Tape Jud 92-1, Side B, at 177 (testimony of Laurie Otto, Staff Counsel for the House Judiciary Committee).

      . 627 P.2d 657 (Alaska App.1981).

      . 655 P.2d 788, 789 (Alaska App.1982).

      . 658 P.2d 1359, 1362 (Alaska App.1983).

      . See Cook v. State, 36 P.3d 710, 730 (Alaska App.2001); Pitka v. State, 19 P.3d 604, 608 (Alaska App.2001); Foley v. State, 9 P.3d 1038, 1040 & n. 5 (Alaska App.2000); Harris v. State, 980 P.2d 482, 486 (Alaska App.1999); Reese v. State, 930 P.2d 1295, 1298-99 (Alaska App.1996).

      . Specifically, this Court said: "Petersen was a first felony offender. Under AS 12.55.125(k) and Austin v. State, 627 P.2d 657 (Alaska App.1981), as construed in Brezenoff v. State, 658 P.2d 1359, 1362 (Alaska App.1983), Petersen could not receive 3 years to serve unless the sentencing judge found one or more of the aggravating factors listed in AS 12.55.155(c) (or unless the judge found extraordinary circumstances under AS 12.55.165).

      . HCS CSSB 3 (Finance), § 11.

      . See Minutes of the House Judiciary Committee for March 3, 1999, Tape 99-9, Side A, at 1638 (testimony of Juli Lucky, staff researcher for Senator Halford), and Minutes of the House Finance Committee for May 10, 1999, Tape HFC 99-122, Side 1 (testimony of Juli Lucky).


author: MANNHEIMER, Judge.

text:
    Sean Burdetto HUGHES, Appellant, v. STATE of Alaska, Appellee.
    No. A-7713.
    Court of Appeals of Alaska.
    Oct. 17, 2002.

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

MANNHEIMER, Judge.

Sean Burdetto Hughes entered the house of his estranged wife after he learned that another man, Derwin Hunter, had spent the night there. Brandishing a chefs knife, Hughes threatened to kill his wife, and then he stormed to the bedroom where Hunter was located. Hughes tried to break into the bedroom, first with a knife and then with a screwdriver.

Hughes finally succeeded in kicking down the bedroom door. He and Hunter struggled briefly until a friend of the family, Ricky Meredith, intervened. Meredith restrained Hughes and advised Hunter to leave the house. Hunter took this advice: he gathered his belongings and left before the police arrived.

Based on this episode, Hughes was convicted of third-degree assault (for placing Hunter in fear of imminent serious physical injury by means of a dangerous instrument) , third-degree criminal mischief (for intentionally damaging his wife's property by breaking the bedroom door) , and reckless endangerment (for recklessly engaging in conduct that created a substantial risk of serious physical injury to his estranged wife, Meredith, and Hunter) .

Hughes appeals his convictions on various grounds, each of which is discussed below. For the reasons explained here, we affirm Hughes's convictions.

The claim that the State failed to present exculpatory evidence at grand jury regarding the third-degree assault charge

Shortly after the incident, an Anchorage police officer interviewed Derwin Hunter. When the officer asked Hunter, "Were you afraid?", Hunter replied: "No, not really. I didn't think he was gonna do anything to me.... As far as the knife is concerned, I deal with that every day...."

Hughes points out that a charge of third-degree assault under AS 11.41.220(a)(1)(A) requires the State to prove that the victim was "place[d] ... in fear of imminent serious physical injury". Based on this statutory language, Hughes argues that he would be innocent of this charge if, despite his actions, Hunter was not afraid of being hurt. Hughes therefore contends that Hunter's statement was "exculpatory evidence" under the rule announced in Frink v. State, 597 P.2d 154, 164-66 (Alaska 1979), and that the prosecutor was obliged to present Hunter's statement to the grand jury.

Under Frink, a prosecutor is obliged to inform the grand jury of evidence that exculpates the defendant. However, the State's duty to present exculpatory evidence to the grand jury extends only to evidence that tends to negate the defendant's guilt in and of itself. Here, Hunter's statement may conceivably have provided some ammunition for the defense, but it was not exculpatory in and of itself.

It is true that the third-degree assault statute requires proof that the defendant "place[d] another person in fear of imminent serious physical injury". But, as used in this statute, the word "fear" does not refer to fright, dread, intimidation, panic, or terror. Rather, a person is "placed in fear" of imminent injury if the person reasonably perceives or understands a threat of imminent injury. The victim's subjective reaction to this perception is irrelevant. It does not matter whether the victim of the assault calmly confronts the danger or quivers in terror. The question is whether the victim perceives the threat.

This point of law is discussed in Wayne R. LaFave and Austin W. Scott, Jr., Substantive Criminal Law (1986), § 7.16(b), a subsection entitled, "Assault as Intentional Searing". Immediately following this heading, the authors provide an explanatory footnote:

The word "scare" or "frighten" is ... used loosely herein as a short term for the more cumbersome but more accurate expression "causing reasonable apprehension of immediate bodily harm". See W. Pros-ser and W. Keeton, Torts § 10 (5th ed.1984), speaking of the requirement of apprehension of immediate bodily harm required for a civil assault: "Apprehension is not the same thing as fear, and the plaintiff is not deprived of his action merely because he is too courageous to be frightened or intimidated."

Id., Vol. 2, p. 315 n. 26.

Hunter's statement that he was not afraid of being injured may have been false bravado (as the State suggests). Alternatively, Hunter's statement may have accurately reflected the calm of a man who often faces physical danger. (Hunter told the officer that "as far as the knife is concerned, [he] deal[s] with that every day".)

But in either case, Hunter's statement did not negate the State's allegation that Hunter reasonably perceived a danger of imminent serious physical injury because of Hughes's actions. Thus, Hunter's statement was not "exculpatory evidence" within the meaning of the Frink rule.

The trial judge's ruling that Hughes could not introduce hearsay testimony concerning a statement that Hunter made to the police

At Hughes's trial, as the defense attorney ended his cross-examination of Officer Denise Rollins, the attorney asked Rollins, "[Is it true that] Mr. Hunter told you [that] he was just watching the television while [Hughes was trying to break down the door of the bedroom]?" The prosecutor objected that the defense attorney's question called for hearsay; Hughes's attorney did not respond. The trial judge, Superior Court Judge Larry D. Card, sustained the prosecutor's objection. The defense attorney then announced that he had no further questions of the witness.

A few minutes later, after the witness had left the stand, Hughes's attorney offered an answer to the prosecutor's objection. The defense attorney suggested that Hunter's out-of-court statement was admissible under the "state of mind" exception to the hearsay rule. The defense attorney argued that "if Mr. Hunter was sitting up there in the bed[room], watching TV while this fight is going on, then that means [he was not] placed in fear of imminent physical injury". Judge Card ruled that the "state of mind" exception did not apply.

On appeal, Hughes abandons his "state of mind" theory and instead argues that Hunter's statement was not hearsay at all. Under Evidence Rule 801(c), hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Hughes contends that Hunter's statement was important because of what it tended to prove about Hunter's state of mind at the time of the alleged assault. Hughes therefore argues that the statement was not offered to prove the truth of the matter asserted. But this argument is flawed.

If Hunter was watching television while an angry husband was allegedly trying to break down the door and was threatening his wife with a knife, this might tend to undercut the assault charge. But any inference about Hunter's mental state-his apparent lack of concern-necessarily rests on the premise that there be admissible evidence to show that Hunter was in fact watching television during all the commotion. There was no evidence of this except for Hunter's out-of-court statement. Thus, the defense attorney was indeed offering Hunter's statement for the truth of the matter asserted-offering it to prove that Hunter was watching television while Hughes was trying to break into the bedroom.

The statement was therefore hearsay, and Judge Card correctly sustained the objection to the defense attorney's question.

Hughes argues for the first time on appeal that Hunter's statement may have been admissible under the "catch-all" exception to the hearsay rule, Evidence Rule 803(28). We reject this argument for two reasons.

First, Hughes did not present this theory of admissibility to the trial judge. He therefore can not raise it on appeal.

Second, hearsay is not admissible under Evidence Rule 803(23) unless the proponent of the hearsay shows that the out-of-court statement carries "circumstantial guarantees of trustworthiness" equivalent to the other recognized exceptions to the hearsay rule. Hughes does not show that Hunter's statement met this requirement.

The trial judge's denial of Hughes's request for a week's continuance

On the first day of trial, prior to the parties' opening statements, the prosecutor announced that the State had been unable to locate Derwin Hunter, but the prosecutor told the court that he was willing to proceed without Hunter's testimony. In response, Hughes's attorney asked Judge Card to dismiss the third-degree assault charge. The defense attorney argued that Hunter was a crucial witness because Hunter would concede that he was not afraid during the incident. This concession, according to the defense attorney, would disprove the State's allegation of assault.

The prosecutor answered that dismissal was inappropriate. The prosecutor told the court that "it sounds ... like the defense wants [al dismissal because they haven't bothered to subpoena the victim.... [If] they think his testimony is that important, maybe they should subpoena him."

The defense attorney replied that he had, in fact, made attempts to locate Hunter. He had traced Hunter to North Carolina or Virginia, but there the trail ended. The defense attorney conceded that it was "unlikely" that Hunter could be found.

Judge Card denied the defense motion to dismiss the assault charge. The judge ruled that if Hunter was unavailable to testify, each side would have to deal with that fact.

This issue surfaced again at the end of the third day of trial, after the prosecution had rested its case-in-chief. Hughes's attorney argued that Hunter's absence from the trial constituted a denial of Hughes's right of due process. The defense attorney contended that the State had a constitutional obligation to present Hunter as a witness if he was available. Judge Card denied the defense request for two reasons. First, the record indicated that Hunter could not be located-that he was, in fact, unavailable. Second, assuming that Hunter was available, he was equally available to both parties, so the State did not violate Hughes's right of due process by failing or neglecting to subpoena him.

At this point, the defense attorney asked Judge Card to continue the trial for one week so that the defense could locate Hunter and procure his testimony. Judge Card did not reject this request out of hand, but he told the defense attorney that he was not inclined to declare a recess in the middle of the trial unless the defense attorney was able "to tell [him] something more about the situation":

The Court: [You must let me know] whether ... you have an idea of where [Hunter] is, and [then] talk to him or his mother or whomever he lives with and see when he could get up here, and how long it would take you folks to get him. Then we'll decide if we're going to recess the trial. I'm not going to recess the trial for a week without knowing any of that....
[TJhe State has indicated from the beginning that they weren't going to call [Hunter] as a witness. And so it's not like the first notice was given today that he wasn't going to be called. So if you want to find out ... if you can get in touch with him, how long it would take him to get up here, assuming you can get a ticket.... I may be willing to recess for twenty-four hours, till ... Friday, and continue the trial Friday and get done-or even [next] Monday if, for example, he has to finish ... a work shift, [N.B.: This conversation was taking place on a Wednesday afternoon.] You know, that sounds reasonable.... But not a week without [any more information].

Judge Card then told the defense attorney that he would take the request for a continuance under advisement overnight. The Judge directed the defense attorney to "give [him] some more information tomorrow morning". Hughes's attorney responded, "Okay. Good." The defense attorney then mentioned the possibility that Hunter might not come to Alaska voluntarily-that Hughes would have to apply for an interstate subpoena. Judge Card responded, "T'll sign whatever you need."

The next morning, Judge Card asked the defense attorney if he had anything to report about Hunter's availability as a witness. The defense attorney answered,

Defense Attorney: Judge, I'm going to be honest with you: I didn't have time to try to call yesterday. I was in court [all day], and then [I] tried to deal with some office matters before everyone went home at five c'elock, [so] I didn't have time to call down there-realizing that [Hunter] does not have a home phone and it would be nine o'clock on the East Coast ..., and so I just-it was a crash and burn evening, pretty much.

Based on the defense attorney's response, Judge Card denied the request for a continuance. The judge reiterated that he was "not going to give a week's continuance based on ... no [information] at all."

On appeal, Hughes does not challenge Judge Card's refusal to dismiss the assault charge because of Hunter's absence. Hughes does, however, challenge Judge Card's denial of the week's continuance. He contends that Judge Card unreasonably denied him an extra week to find a crucial defense witness.

In Ross v. State, 886 P.2d 378 (Alaska App.1992), this Court listed the factors that a trial judge should consider when deciding whether to grant a mid-trial request for a continuance to obtain the testimony of an absent witness:

(1) whether the [absent witness's] testimony is material to the case;
(2) whether the testimony can be elicited from another source;
(3) whether the testimony is cumulative;
(4) [the] probability of securing the absent witness in a reasonable time;
(5) whether the requesting party was diligent and acted in good faith;
(6) the inconvenience to the court and/or others; [and]
(7) the likelihood that the testimony would have affected the jury's verdict.

Ross, 836 P.2d at 381 (summarizing the discussion in Salazar v. State, 559 P.2d 66, 72-75 (Alaska 1976)).

Using these criteria, we conclude that Judge Card acted reasonably when he denied Hughes's mid-trial request for a continuance.

With regard to the defense attorney's diligence, Judge Card noted that the defense attorney had known since the beginning of the case that Hunter was a potential witness, and had known for several days that Hunter was not going to testify for the State. Nevertheless, Judge Card did not deny Hughes's request for a continuance out of hand. Instead, he gave the defense attorney a day in which to find out more information about where Hunter was and whether he could be brought to Alaska to testify.

Despite the defense attorney's claim that Hunter was a crucial witness for the defense, the defense attorney took no steps to locate Hunter in the time given him. The defense attorney explained that he was in court for much of the day, but Judge Card reasonably could have concluded that a diligent attorney would have assigned other people to this task if Hunter was indeed such an important witness. Moreover, the defense attorney admitted that, even when he got out of court, he attended to office business instead of using the time to try to locate Hunter-until it was too late to call the East Coast. In short, the defense attorney did not act diligently.

The probability that Hunter's testimony could be secured in a reasonable amount of time appears to have been Judge Card's central concern. He repeatedly told the defense attorney that he was not prepared to order a recess of the trial without some reason to think that Hunter could be located and brought to Alaska to testify. As described above, when the issue of Hunter's testimony arose early in the trial, the defense attorney conceded that Hunter probably could not be located. As the proponent of the continuance, the defense attorney was obliged to present Judge Card with good reason to believe that this was no longer the case-that Hunter could be located and his testimony procured. The defense attorney did not do so. |

And with regard to the materiality of Hunter's testimony, we note that the defense attorney's claim that Hunter was a crucial witness rested on the same argument that we rejected in the first section of this opinion-the argument that Hughes could not be convicted of assault if Hunter was not subjectively afraid of Hughes. This proposition of law is mistaken. This undercuts Hughes's assertion that he could not get a fair trial without Hunter's testimony.

In the last analysis, Hughes's attorney asked Judge Card to continue the trial for a week without giving the judge any reason to believe that the delay would achieve anything. We therefore conclude that Judge Card did not abuse his discretion when he denied Hughes's mid-trial request for a continuance. |

Hughes's motion for a judgement of acquittal on the assault charge

Hughes argues that he is entitled to a judgement of acquittal on the third-degree assault charge involving Derwin Hunter. But Hughes argues the evidence in the light most favorable to himself, The test is whether the evidence is sufficient to support the conviction when viewed in the light most favorable to upholding the jury's verdict.

Moreover, Hughes's primary argument for acquittal is the same argument that we rejected in the first section of this opinion-the argument that the State could not prove assault if there was no evidence that Hunter was subjectively afraid of Hughes. That is not the issue. The question is whether the State presented evidence from which the jury could reasonably conclude that, because of Hughes's conduct, Hunter reasonably perceived a danger that he would suffer imminent serious physical injury. Viewed in the light most favorable to upholding the jury's verdict, the State's evidence was sufficient to establish this element.

Hughes's motion for a judgement of acquittal on the criminal mischief charge

Under AS 11.46.484(a)(1), a person commits the crime of third-degree criminal mischief if the person intentionally "damages property of another" having a value of at least $50, and if the person "has] no right to do so [and nol reasonable ground to believe [that they have] such a right".

Hughes concedes that the State presented sufficient evidence to support the conclusion that Hughes intentionally broke down the bedroom door. But Hughes argues that he could not lawfully be convicted of criminal mischief for this conduct because he and his estranged wife were co-owners of the house. Based on this co-ownership, Hughes contends that he did not damage "property of another".

Hughes underlying argument is that, even though his wife was co-owner of the door, the door could not be "property of another" so long as it also belonged to him. We explicitly rejected this argument in LaParle v. State, 957 P.2d 330 (Alaska App.1998).

"Property of another" is defined in AS 11.46.990(18) as "property in which [another] person has an interest which the defendant is not privileged to infringe, whether or not the defendant also has an interest in the property". In LaPorle, we noted that the drafters of this provision, in their commentary, had "clearly indicated their intention [that] co-owners of property should be as well protected against depredations by other co-owners as they are against outsiders". We also noted several decisions from other states holding that a spouse can be convicted for stealing or vandalizing property co-owned by the married couple. We then concluded:

Based on the [statutory definition of "property of another"], the commentary that accompanied the tentative draft of this provision, and the decisions of other jurisdictions cited in the preceding paragraph, we conclude that the commonly-held property of a married couple can constitute "property of another", even as between the two spouses. That is, it is legally possible in. Alaska for a spouse to commit theft of marital property.

'LaParle, 957 P.2d at 384. For these same reasons, we conclude that it is legally possible for a spouse to be convicted of eriminal mischief for vandalizing marital property.

However, this does not completely resolve the matter, for the criminal mischief statute also requires proof that the defendant "Thad nol reasonable ground to believe [that they had] a right" to destroy the property at issue. Although Hughes's co-ownership of the door does not, in itself, give him a defense to the charge of criminal mischief, the question remains whether Hughes's co-ownership of the property might have given him a "reasonable ground to believe" that he was entitled to infringe his wife's interest in the door by breaking it down.

It is conceivable that, under certain circumstances, a spouse might reasonably believe that they were entitled to destroy or intentionally damage marital property-e.g., to accomplish the remodeling of a room, or to save life or property during a fire or other emergency. But this would be an issue of fact for the jury.

The question here is whether Hughes subjectively and reasonably believed that, given the circumstances of this case, he had a right to vandalize or destroy a door that belonged (in part) to his wife. The evidence at trial, if viewed in the light most favorable to upholding the jury's verdict, was sufficient to support the conclusion that Hughes had no such reasonable belief, (We note, moreover, that when Hughes's attorney delivered his summation to the jury, the attorney never suggested that Hughes believed that he had a right to destroy or damage the door.)

In sum, the State's evidence was sufficient to support Hughes's conviction for third-degree criminal mischief.

Hughes's argument that his conviction for reckless endangerment should merge with his conviction for third-degree assault on Hunter

As discussed above, Hughes was convicted of third-degree assault for recklessly causing Derwin Hunter to apprehend imminent serious physical injury by means of a dangerous instrument-a knife. In addition, Hughes was convicted of reckless endangerment under AS 11.41.250(a) for "recklessly engagl[ing] in conduct that created a substantial risk of serious physical injury to another person".

The above-quoted language is from the indictment as well as the statute. In other words, the indictment did not specify the victims of the offense-the people for whom Hughes's conduct created a risk of injury. This lack of specificity in the indictment engendered a legal controversy at the end of the trial.

After Hughes was convicted of both third-degree assault and reckless endangerment, the defense attorney asked Judge Card to merge the reckless endangerment conviction into the third-degree assault conviction. The defense attorney argued that this was required because (1) reckless endangerment is a lesser offense included within third-degree assault, (2) both offenses stemmed from the same conduct, and (8) Derwin Hunter was the victim of both crimes. Judge Card rejected this argument because he concluded that there were as many as three victims of the reckless endangerment count-all three of the persons present in the home: Hughes's wife, Ricky Meredith (the friend who intervened in the fight), and Hunter.

On appeal, Hughes renews his argument that the two crimes should merge. He points out that the jury was not asked to fill out a special verdict form specifying the person or persons endangered by Hughes's conduct. Thus, Hughes claims, the jury's decision is irresolvably ambiguous regarding the identity of the victim(s) of the reckless endangerment charge. Hughes argues that, because of this ambiguity, it is possible that the jury concluded that Hunter was the sole victim of the reckless endangerment-in which case, the reckless endangerment conviction should merge with the third-degree assault conviction because both convictions punish essentially the same act.

But the alleged ambiguity vanishes when the record is examined. Although the indictment does not specify the victims of the reckless endangerment, the prosecutor repeatedly told the jury-both in opening statement and in summation-that the conduct underlying this charge was Hughes's act of waving a knife in the presence of his wife and his friend Meredith (initially in the kitchen, and then as Hughes first approached the bedroom). Hughes's wife and Ricky Meredith were the only people in Hughes's presence during this time.

Hughes's wife testified that, during the confrontation in the kitchen, Hughes was waving the knife, making threats, and yelling for Hunter to come out of the bedroom. Meredith agreed that Hughes grabbed a knife during the confrontation. But Meredith testified unambiguously that, at his urging, Hughes put the knife down and returned the weapon to the kitchen before he went back to the bedroom, broke down the bedroom door, and began struggling with Hunter.

The prosecutor's description of the reckless endangerment charge and the testimony supporting this charge resolved the potential ambiguity in the jury's verdict. Because the actus reus of the charge was Hughes's act of brandishing the knife in the presence of his wife and Meredith, the jury must have concluded that one or both of them were victims of this crime.

It is conceivable that the jury concluded that Hunter was a third victim of the reckless endangerment charge. Hunter never actually saw Hughes with the knife in his hand, but the State argued that Hunter was placed in fear of imminent serious physical injury by the commotion outside the bedroom door, by Meredith's pleas to Hughes to put down the knife, and by Hughes's eventual act of breaking down the door. But this is not sufficient for Hughes to win his merger argument.

To show entitlement to a merger of the two convictions, Hughes must demonstrate either that Hunter was the sole victim of both charges or, at least, that it is impossible to tell whether the jury might have viewed Hunter as the sole victim of both charges. Here, although the evidence conceivably supported the conclusion that Hunter was an additional victim of the reckless endangerment charge, the evidence and the prosecutor's arguments ineluctably lead to the conclusion that the jury viewed Hughes's wife and/or Meredith as victims of this crime. The fact that the reckless endangerment charge included two victims other than Hunter means that this charge does not merge with the third-degree assault charge in which the sole victim was Hunter.

Compare State v. Dunlop, 721 P.2d 604, 609 (Alaska 1986), where the supreme court held that a single act of reckless driving can support multiple convictions for homicide and assault when more than one victim is killed or injured; and Cooper v. State, 595 P.2d 648, 649 (Alaska 1979), where the supreme court held that the act of firing one shot toward three people will support three convictions for assault.

Conclusion

The judgement of the superior court is AFFIRMED.

      . AS 11.41.220(a)(1)(A).

      . AS 11.46.484(a)(1).

      . AS 11.41.250(a).

      . See Mustafoski v. State, 954 P.2d 1042, 1045 (Alaska App.1998); State v. McDonald, 872 P.2d 627, 639 (Alaska App.1994).

      . AS 11.41.220(a)(1)(A).

      . See Jones v. State, 576 P.2d 997, 1000-1001 (Alaska 1978); Dyer v. State, 666 P.2d 438, 450-451 (Alaska App.1983) (a defendant who unsuccessfully offers evidence under one theory of admissibility at trial can not argue a different theory of admissibility on appeal).

      . See Ryan v. State, 899 P.2d 1371, 1379 (Alaska App.1995) ("[Tlhe touchstone for determining the admissibility of hearsay under [the catch-all exception] is its trustworthiness. The hearsay must possess at least the same guarantees of trustworthiness that characterize the other types of admissible hearsay listed [in the rule].").

      . See Hentzner v. State, 613 P.2d 821, 823 (Alaska 1980); Siggelkow v. State, 648 P.2d 611, 613 (Alaska App.1982).

      . LaParle, 957 P.2d at 333-34 (quoting Alaska Criminal Code Revision, Tentative Draft, Part 3, .p. 21).

      . LaParle, 957 P.2d at 334, citing: People v. Llamas, 51 Cal.App.4th 1729, 60 Cal.Rptr.2d 357, 361-62 (Cal.App.1997) (holding that a spouse can be convicted of theft for taking community property); Commonwealth v. Mescall, 405 Pa.Super. 326, 592 A.2d 687, 690-91 (1991) (same); People v. Kahanic, 196 Cal.App.3d 461, 241 Cal.Rptr. 722, 723 (1987) (holding that a spouse can be convicted of vandalism for destroying community property); State v. Webb, 64 Wash.App. 480, 824 P.2d 1257, 1262-63 (1992) (same).

      . See Tuckfield v. State, 621 P.2d 1350, 1352 (Alaska 1981); but cf. Todd v. State, 917 P.2d 674 (Alaska 1996) (holding that a defendant can be separately convicted of both felony murder and the underlying felony).


author: Judge TAUBMAN.

text:
    MORTGAGE INVESTMENTS CORPORATION, a Colorado corporation, Plaintiff-Appellee, v. BATTLE MOUNTAIN CORPORATION; Anglo American Consolidated Corporation; Anglo America Consolidated Corporation; Conejos Advisors Company; Sangre Consultants, Inc.; Apishapa Management, Inc.; Piney Lumber Company; Pine Martin Mining Company; and Battle Mountain Limited Liability Company, Defendants-Appellants.
    No. 99CA2111.
    Colorado Court of Appeals.
    July 5, 2001.
    As Modified on Denial of Rehearing January 17, 2002.
    Certiorari Granted Oct. 21, 2002.

      Netzorg & McKeever, P.C., Gordon W. Netzorg, Cortes Macaulay Bernhardt & Schuetze, LLC, Susan Bernhardt, Denver, CO, for Plaintiff-Appellee.
    Appel & Lucas, P.C., Garry R. Appel, Denver, CO, for Defendants-Appellants.

       Justice KOURLIS does not participate.

       Sitting by assignment of the Chief Justice under provisions of the Colo. Const. art. VI, Sec. 5(3), and § 24-51-1105, C.R.S.2000.

   Opinion by

Judge TAUBMAN.

In this suit to foreclose on a deed of trust, defendants, Battle Mountain Corporation (BMC); Anglo American Consolidated Corporation; Anglo America Consolidated Corporation; Conejos Advisors Company; Sangre Consultants, Inc.; Apishapa Management, Inc.; Piney Lumber Company; Pine Martin Mining Company; and Battle Mountain Limited Liability Company (collectively Battle Mountain), appeal the summary judgment and orders entered in favor of plaintiff, Mortgage Investments Corporation (Mort gage Investments). We affirm in part, reverse in part, and remand for further proceedings.

In 1983, BMC signed a promissory note secured by a deed of trust on real property known as the Gilman property, located in Eagle County, Colorado. The Federal Deposit Insurance Corporation (FDIC) eventually became the holder of the note and in 1990 sued on the note and obtained a judgment in California. In 1991, the California judgment was domesticated in Eagle County. In 1998, the FDIC assigned the judgment and deed of trust to Mortgage Investments.

In 1994, Thomas Nevis, the sole shareholder of BMC, allegedly sold the "corpus" of BMC to Jeff Tucker for $1000, but Tucker did not obtain the BMC stock certificates. Because BMC was not in good standing with the secretary of state and the corporate name was no longer available, Tucker changed BMC's name to Anglo American Consolidated Corporation (AACC).

Later that year, Turkey Creek, LL.C. (Turkey Creek) filed a complaint in case 94CV152 seeking to foreclose on the deed of trust and seeking to quiet title to some of the Gilman property.

In 1995, Nevis and BMC sold the Gilman property to Glenn Miller and conveyed it to him by quitclaim deed. That same year, Mortgage Investments recorded its interest as an assignee in the judgment and deed of trust regarding the Gilman property.

In 1996, AACC granted 405 deeds of trust on the Gilman property to three of the Battle Mountain defendants and also conveyed parts of the Gilman property to the other three defendants. The trial court found that AACC's grant of the 405 deeds of trust was void.

In 1998, Turkey Creek commenced a see-ond action, case 98CV372, against AACC for damages based upon the 405 fraudulent deeds of trust involved in case M4CV152. Mortgage Investments then commenced this foreclosure action, case 98CV374, against Battle Mountain based on the 1988 BMC deed of trust. Mortgage Investments served the summons and complaint on Tucker as "agent, manager and/or officer" of BMC.

In 1999, over Battle Mountain's objections, the trial court granted the joint motion of Turkey Creek and Mortgage Investments to consolidate, inter alia, cases 98CV872 and 98CV374 with case ACV152.

Thereafter, the trial court entered summary judgment in favor of Mortgage Investments and struck BMC's pleadings in case 98CV374, concluding that because Tucker had never acquired ownership of BMC, he had no authority to act on BMC's behalf. The court also awarded summary judgment in favor of Mortgage Investments with regard to its claims against the other Battle Mountain defendants as they were created through conveyances from BMC.

Battle Mountain now appeals the summary judgment in case 98CV374 and the orders consolidating the cases, striking its pleadings, and denying post-trial relief.

I. Appellate Jurisdiction

Initially, we consider and reject Mortgage Investments' contention that Battle Mountain's appeal is not properly before this court because the trial court did not issue a final order. After the notice of appeal was filed, the trial court issued an order certifying the summary judgment as final pursuant to C.R.C.P. 54(b). Thus, we may consider Battle Mountain's appeal.

II. Consolidation

Battle Mountain first contends that the trial court abused its discretion by consolidating case 98CV374 with case Specifically, Battle Mountain argues that by consolidating the cases, the senior judge presiding over case 94CV152 exceeded his constitutional authority and abused the court's discretion because case ACV152 was no longer "pending" and there were no common questions of law or fact, as required by C.R.C.P. 42(a). We disagree.

A court may consolidate pending actions involving common questions of law or fact. C.R.C.P. 42(a). The decision to grant or deny a motion to consolidate lies within the sound discretion of the trial court, and its ruling will not be disturbed on review absent a clear abuse of that discretion. Fed. Deposit Ins. Corp. v. Bowen, 865 P.2d 868 (Colo.App.1993).

In October 1998, Turkey Creek and Mortgage Investments filed a joint motion to consolidate case 98CV374 and case 98CV372. In February 1999, they filed a motion to consolidate, inter alia, cases 98CV372 and 98CV374 with case 94CV152. Over Battle Mountain's opposition, the trial court granted the second motion.

A. Senior Judge's Authority

Battle Mountain first asserts that because the senior judge was appointed originally to perform temporary judicial duties only in case 94CV152, he exceeded his constitutional authority in consolidating the other cases with that case. We are not persuaded.

The Colorado Constitution states, in pertinent part, "Whenever the chief justice deems assignment of a judge necessary to the prompt disposition of judicial business, he may ... (b) assign any ... retired ... district ... judge who consents, temporarily to perform judicial duties in any court." Colo. Const. art. VI, § 5(8). Accordingly, retived judges from the judicial division, who have entered into an agreement with the chief justice of the supreme court, are permitted to "return to temporary judicial duties" as senior judges. Section 24-51-1105(1)(a), C.R.S.2000. Thus, retired judges may preside as senior judges over district court cases.

Here, in 1996, the judge presiding over case 94CV152 retired, but subsequently was assigned to continue hearing that case as a senior judge. The order stated, "After review of the above-entitled matter, counsel's request, and consultation with the Chief Justice, it is hereby Ordered that the Honorable William L. Jones, Senior Judge, be appointed to hear this matter [case 4CV152] to its conclusion." Three years later, that senior judge granted the motion to consolidate discussed above.

We conclude that the senior judge did not exceed his constitutional authority by granting the motion to consolidate. Neither the Colorado Constitution nor § 24-51-1105(1)(a) prohibits a senior judge from consolidating cases when it is appropriate to do so under C.R.C.P. 42(a). Without such an express prohibition, there is no reason to preclude a senior judge from performing the tasks required of a district court judge. Cf. Merchants Mortgage & Trust Corp. v. Jenkins, 659 P.2d 690 (Colo.1983)(Colorado Constitution deprives a judge of jurisdiction to act on district court cases after appointment to court of appeals); People v. Torkelson, 22 P.3d 560 (Colo.App.2000)(court acted without jurisdiction when county court judge who accepted the verdiet was not appointed pursuant to the constitution and chief justice directive).

In addition, contrary to Battle Mountain's contention, there is no indication that the parties engaged in judge-shopping. In selecting the court in which to file their motion for consolidation, Turkey Creek and Mortgage Investments merely complied with CRCP. 121 § 1-8 and filed the motion in the court hearing the earliest filed case, namely case 4CV152.

Accordingly, we conclude that the trial court judge did not exceed his constitutional authority by consolidating the cases.

B. C.R.C.P. 42 Requirements

In addition, Battle Mountain contends that the trial court abused its discretion in consolidating the cases because the requirements for consolidation under C.R.C.P 42 were not met. Specifically, Battle Mountain asserts that case 4CVI52 was no longer pending before the trial court, that it did not have the same parties as case 98CV374, and that the two cases did not involve the same property. Again, we are not persuaded.

Battle Mountain first argues that case 94CV152 was no longer pending because it had been affirmed on appeal in Turkey Creek, LLC v. Rosania, 953 P.2d 1306 (Colo.App.1998). However, that appeal was from a partial summary judgment and did not affect issues that remained pending before the trial court. Thus, case 4CV152 was still pending for the purpose of C.R.C.P. 42(a).

Next, Battle Mountain asserts that the two cases did not involve the same property. However, the record does not support this assertion. Rather, the record demonstrates that the property listed in an attachment to Mortgage Investments' complaint in case 98CV374 includes some of the same property listed in documents relating to case 94CV152. Thus, because some of the same property was involved in both cases, the trial court did not abuse its discretion in consolidating the cases.

The fundamental inquiry in determining whether consolidation is appropriate is whether the cases share common questions of law or fact. C.R.C.P. 42(a).

Here, the common legal question linking these cases was the ownership of the Gilman property. Several parties presented competing claims concerning the validity of their deeds of trust on this property. The need for joint resolution of these claims made consolidation appropriate here.

In addition to the common question of law, the cases involved similar witnesses, similar documentary evidence, and similar parties. Many of the parties were involved in at least two of the various cases consolidated with case 94CV152. See Askew v. Gerace, 851 P.2d 199 (Colo.App.1992)({court did not abuse its discretion in consolidating cases even where parties in the two cases were not identical). Thus, the cases had common questions of fact.

Accordingly, because common questions of law and fact were present, we find no abuse of discretion.

III. Summary Judgment and Motion to Strike the Pleadings

Next, Battle Mountain contends that the trial court erred in granting Mortgage Investments' motions for summary judgment and to strike Battle Mountain's pleadings. We agree.

Under C.R.C.P. 56(c), summary judgment is proper only when the pleadings, affidavits, depositions, or admissions show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Cissell Mfg. Co. v. Park, - P.3d -, 2001 WL 125896 (Colo.App. No. 99CA1581, Feb. 15, 2001). Appellate review of a summary judgment is de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Bd., 901 P.2d 1251, 1256 (Colo.1995).

In determining whether summary judgment was appropriate, a reviewing court must view the facts and the inferences to be drawn therefrom in the light most favorable to the nonmovant. Colorado Civil Rights Comm'n v. North Washington Fire Protection Dist., 772 P.2d 70, 80 (Colo.1989).

Here, Battle Mountain moved for partial summary judgment, arguing that Mortgage Investments' complaint was time-barred by the six-year statute of limitations for enforcement of rights set forth in an instrument evidencing a debt pursuant to § 183-80-108.5, C.R.S.2000. Mortgage Investments then filed a cross-motion for summary judgment. Seeking to strike Battle Mountain's pleadings, it argued that because Tucker never received the BMC stock certificates from Nevis as required by § 4-8-104(a), C.R.S. 2000, he never became the sole shareholder of BMC, never had the authority to act on BMC's behalf, and accordingly had no standing to challenge this foreclosure action. The trial court concluded that Mortgage Investments' complaint was not time-barred and granted its motion, finding that Tucker had never acquired ownership of BMC, and accordingly that Battle Mountain's pleadings were therefore filed without proper authority.

A. Standing

Battle Mountain argues that the trial court improperly applied the doctrine of standing when it found that Tucker could not act on behalf of BMC and that the interests held by the other Battle Mountain defendants were invalid. We agree.

Essentially, the trial court found, and Mortgage Investments now argues, that because Tucker had no authority to act on behalf of BMC, and therefore had no authority to create the entities that are the other Battle Mountain defendants, Battle Mountain had no standing to litigate against Mortgage Investments. However, this argument is misplaced.

Traditional standing rules do not apply when a defendant's standing is challenged. Once the plaintiff has established standing and the defendants have been brought into court by the plaintiff, the defendants' only role is to defend against the suit. In re Estate of DeWitt, 32 P.3d 550 (Colo. App.2000). Thus, the rules for determining whether a plaintiff has standing are inapplicable to the defendants here. See Simpson v. Highland Irrigation Co., 893 P.2d 122 (Colo. 1995). '

Here, Mortgage Investments sued Battle Mountain; therefore, Battle Mountain has "standing" to defend itself in these proceedings.

B. Ultra Vires Corporate Actions

Battle Mountain further argues that the trial court erred in granting summary judgment because Mortgage Investments cannot challenge the validity of its corporate actions. Again, we agree.

Section 7-103-104, C.R.S.2000, addresses ultra vires corporate actions and states in relevant part:

(1) Exeept as provided in subsection (2) of this section, the validity of corporate action may not be challenged on the ground that the corporation lacks or lacked the power to act.
(2) A corporation's power to act may be challenged:
(a) In a proceeding by a shareholder against the corporation to enjoin the act;
(b) In a proceeding by or in the right of the corporation ...; or
(e) In a proceeding by the attorney general under section 7-114-301.

Here, Mortgage Investments argues that because Tucker did not receive the BMC securities as required by § 4-8-104(a)(1), C.R.9$.2000, he did not have the authority to act on behalf of BMC. Thus, he did not have the authority to create the other Battle Mountain entities or transfer any of BMC's interests to them. However, we do not address that argument on the merits. Mortgage Investments is barred from making such a claim of wiltra vires action against BMC and the other Battle Mountain defendants by the provisions of § 7-108-104(1), because the claim does not fit within any of the exceptions in § 7-108-104(2). Therefore, Mortgage Investments is prohibited from challenging Battle Mountain's authority to act.

Furthermore, we reject Mortgage Investments' argument that this statute does not apply because the issue is not an ultra vires action, but rather, whether Tucker was the proper person to cause BMC and Battle Mountain to take any action. However Mortgage Investments chooses to frame this issue, it is still challenging the authority of BMC and Battle Mountain to take certain actions. Thus, it is asserting an witra vires challenge, and as stated above, it is precluded from doing so by § 7-108-104(1).

Consequently, we conclude that the trial court erred in granting summary judgment in favor of Mortgage Investments and in striking Battle Mountain's pleadings.

C. Waiver

Finally, we disagree with Mortgage Investments' contention that Battle Mountain's defenses to foreclosure were waived when the trustee in bankruptcy for the Miller estate executed a waiver and release of all defenses and disclaimed all interest in the property in case 94CV152. These actions were taken on behalf of the Miller estate, and not Battle Mountain. Therefore, such waiver was not binding on Battle Mountain.

IV. Time Limitations

Battle Mountain argues that the trial court erred in granting summary judgment because § 13-80-108.5, C.R.8.2000, is the applicable statute of limitations and precludes Mortgage Investments' claim. In the alternative, Battle Mountain argues that Mortgage Investments' claim is barred by § 13-52-102(1), C.R.S.2000, which provides that judgment liens shall continue for six years from the entry of judgment unless the judgment is previously satisfied. In response, Mortgage Investments argues that § 13-80-108.5 does not apply because it does not address foreclosure proceedings, that § 13-52-102(1) does not apply either because it does not purport to apply to deeds of trust, and that § 38-89-205, C.R.S.2000, provides a fifteen-year time limitation under which its action was timely filed. We agree with Battle Mountain.

Initially, we reject Battle Mountain's contention that Mortgage Investments has no "standing" to sue because it did not file its claim within the six-year statute of limitations set forth in § 18-80-103.5. For a party to have standing to sue, he or she must have "suffered injury in fact to a legally protected interest as contemplated by statutory or constitutional provisions." Wimberly v. Ettenberg, 194 Colo. 163, 168, 570 P.2d 535, 539 (1977). Here, Mortgage Investments is the assignee of the judgment based on the deed of trust. Because it has been injured by Battle Mountain's failure to satisfy the judgment and deed of trust on the Gilman property, it has standing to sue.

Assuming without deciding that a creditor may simultaneously sue on both a judgment lien and a lien based on a deed of trust, we conclude that Mortgage Investments' claim was not timely filed under either of the applicable statutes of limitations. See Gale v. Rice, 636 P.2d 1280 (Colo.App.1981).

A. § 13-80-108.5

Battle Mountain argues that the trial court erred in granting summary judgment because Mortgage Investments' claim was filed outside the six-year statute of limitations of § 18-80-103.5. We agree.

Section 13-18-105.8 states, in part, that "all actions for the enforcement of rights set forth in any instrument securing the payment of or evidencing any debt" must be filed within six years after the cause of action accrues.

Here, Mortgage Investments sued to foreclose on the deed of trust pursuant to C.R.C.P. 105.

Mortgage Investments argues that § 13-80-103.5 does not purport to apply to foreclosure proceedings. However, Mortgage Investments has repeatedly asserted that it is foreclosing based upon the deed of trust assigned to it by the FDIC. The underlying claim based upon a deed of trust is within the scope of § 13-80-103.5 because the deed of trust secured the underlying debt. Thus, we conclude that § 13-80-108.5 applies here.

Under § 13-80-108.5, the six-year statute of limitations begins to run as soon as the cause of action acerues. There is no information in the record about the date of BMC's first default on the note, which would be the date that the cause of action acerued. However, even using the date the California judgment was entered in 1990 as the date of accrual, Mortgage Investments did not file its claim within the six-year limitations period, which expired no later than 1996. Therefore, under § 18-80-108.5, Mortgage Investments claim was not timely.

B. § 13-52-1021)

Although Mortgage Investments' only sought to foreclose on the deed of trust, insofar as it claims to foreclose on the judgment lien, we address Battle Mountain's assertion that Mortgage Investments' claim was also time-barred by the six-year limit on judgment Hens under $ 13-52-102(1). We agree with Battle Mountain.

Section 18-52-102(1) provides in pertinent part:

All goods and chattels, lands, tenements, and real estate of every person against whom any judgment is obtained in any court of record, either at law or in equity, for any debt, damages, costs or other sum of money are liable to be sold on execution to be issued upon such judgment.... [The judgment shall become a lien upon all the real property of such judgment debtor....

Section 183-52-102(1) further provides that such a lien "shall continue for six years from the entry of judgment."

Here, the FDIC assigned the judgment lien on the Gilman property to Mortgage Investments. Mortgage Investments does not dispute that its assignor obtained a judgment on June 4, 1990 in California.

Under § 13-52-102(1), when a judgment has been 'obtained in a foreign jurisdiction and subsequently filed in Colorado, the six-year period begins to run on the date that the judgment was entered in the foreign jurisdiction. Baum v. Baum, 820 P.2d 1122 (Colo.App.1991). The judgment in California was entered in 1990; therefore, the six-year period expired in 1996. Because Mortgage Investments did not file its claim until 1998, it no longer had a judgment lien at that time.

[18] We note that the running of the statute of limitations or the six-year period for judgment liens does not extinguish BMC's debt; rather, the remedies of foreclosing based on the deed of trust or judgment lien are barred by these time limits. Mortgage Investments may seek to enforce its judgment by other means. See Estate of Ramsey v. State Dep't of Revenue, 42 Colo. App. 163, 167-68, 591 P.2d 591, 595 (1979).

C. § 38-39-205

We also reject Mortgage Investments' contention that a fifteen-year time limit in § 38-39-205 applies, rather than the six-year statutes of limitations in §§ 183-80-108.5 or the six-year period under 18-52-102(1).

Section 88-39-205 states:

Action to be brought within fifteen years. No action shall be commenced to foreclose the lien of any mortgage or deed of trust, unless such action is commenced prior to the date on which such mortgage or deed of trust ceases to be a lien pursuant to sections 38-89-201 and 38-39-202.

Section 38-39-201(1), C.R.S8.2000, provides in relevant part, "any lien upon property created by a mortgage or deed of trust shall cease to be a lien fifteen years after the date on which the final payment or performance of the obligation secured thereby is due."

Mortgage Investments argues that because the date of the final payment due cannot be determined, the fifteen-year period ran from the date the deed of trust was created, September 1, 1983, to September 1, 1998. According to Mortgage Investments, because case 98CV374 was filed on July 13, 1998, it was timely. We disagree.

Section 38-39-205 is not a statute of limitations; rather, it provides a maximum time limit within which a claim upon a deed of trust may be brought. This issue was addressed in Martinez v. Continental Enterprises, 730 P2d 308, 313-14 (Colo.1986), when the supreme court examined the predecessor to § 38-39-205:

Under this statutory scheme, a lien is extinguished in six years if recovery on the underlying note is barred by the six-year statute of limitation. However, if the six-year statute is for some reason tolled, such as where the plaintiff lacks capacity to sue or where the defendant is absent from the state, the ultimate marketability of title is assured by placing an outer limit of fifteen years on the time period during which the lien is deemed viable. Where, as here, any action to recover payment on a promissory note is barred by the six-year statute of limitation, foreclosure on the deed of trust securing the note is also barred. (citations omitted)

Thus, § 38-39-205 does not establish a fifteen-year time limitation for filing a foreclosure claim on a deed of trust, but rather establishes an ultimate limit on how long the six-year statute of limitations may be tolled. Because there was no basis for tolling the statute of limitations here, § 38-39-205 does not apply.

Given this analysis, we do not address Battle Mountain's additional contention that § 38-39-207, C.R.8.2000 applies to bar Mortgage Investments' foreclosure of its deed of trust when no action was taken to foreclose within six years after the note was reduced to judgment.

Therefore, we reverse the summary judgment in favor of Mortgage Investments. We further conclude that on remand, the court must enter judgment for Battle Mountain because Mortgage Investments failed to file its lawsuit in a timely manner.

In light of this conclusion, we need not consider Battle Mountain's remaining contentions.

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

Judge NIETO and Judge STERNBERG concur.