author: WEINZWEIG, Judge:

text:
    Kardakh DANIAL, Petitioner Employee, v. The INDUSTRIAL COMMISSION of Arizona, Respondent,
    AAA Cab Services, Respondent Employer,
    Travelers Property Casualty Company of America, Respondent Carrier.
    No. 1 CA-IC 17-0068
    Court of Appeals of Arizona, Division 1.
    FILED January 15, 2019
    Law Offices of Robert E. Wisniewski, Phoenix, By RobertE. Wisniewski, Counsel for Petitioner Employee
    Industrial Commission of Arizona, Phoenix, By Gaetano J. Testini, Counsel for Respondent
    Lundmark, Barberich, La Mont & Slavin, PC, Phoenix, By R. Todd Lundmark, Counsel for Respondents Employer and Carrier
    Judge David D. Weinzweig delivered the opinion of the Court, in which Presiding Judge Kenton D. Jones and Judge Peter B. Swann joined.
   WEINZWEIG, Judge:

¶1 This case involves an airport taxicab driver who sought workers' compensation benefits for injuries he sustained while driving a taxi he leased from a cab company. The Industrial Commission of Arizona ("ICA") found the injury was non-compensable because the driver was an independent contractor of the cab company rather than an employee for workers' compensation purposes. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 AAA Cab Services ("AAA") is a transportation business and one of three taxicab companies licensed to operate at Sky Harbor International Airport (the "Airport") by the City of Phoenix. AAA leases taxicabs to its airport drivers under a standard one-year lease agreement that automatically renews unless terminated.

¶3 Before leasing a taxicab, AAA requires all drivers to complete a written application, provide their driver's license, undergo a background check and attend an eight-hour defensive driving course. The lease agreement permits AAA drivers to work for other taxicab companies; designates them as independent contractors who are responsible for paying their own taxes; cautions that AAA provides no workers' compensation insurance to drivers; and authorizes drivers to terminate the relationship without cause upon 45 days of notice. AAA can terminate the agreement only for cause.

¶4 AAA imposes no minimum hour requirement on airport drivers and conducts no performance reviews of them. Airport drivers set their own work schedule, arrange for replacement drivers when unavailable and purchase their own gasoline. Airport drivers receive no salary or wages from AAA. The drivers instead retain all passenger fares as compensation, while AAA receives fixed, regular lease payments from the drivers for their taxis. Cash transactions are not reported to AAA, but AAA processes all vouchers and credit card payments to airport drivers and deducts a bank service charge. AAA annually issues IRS 1099 forms to airport drivers to report their income. AAA registers, licenses, insures and performs all necessary maintenance and upkeep on the leased taxicabs. AAA maintains its own company rules to ensure safety and facilitate a positive customer experience; for instance, AAA requires drivers to wear seatbelts, observe all traffic laws and clean the vehicles.

¶5 Most significant here, the Airport wields extensive control and oversight over the general and minute-to-minute operations of all airport taxicab drivers. The Airport requires a separate application, an independent test, a Department of Transportation physical and a federal background check.

¶6 The Airport sets passenger fares. It also imposes and enforces its own detailed set of rules for drivers. For instance, it requires the drivers to use E85 fuel, dress professionally, clean their cabs, be courteous to passengers and refrain from eating, drinking, or smoking in the vehicle. The Airport also leads when disciplinary action is required, not the cab companies. The Airport imposes 95 percent of all disciplinary actions against airport drivers.

¶7 The Airport restricts the movement and customers of airport drivers. Airport drivers wait in a designated airport parking lot until an airport dispatcher instructs them to retrieve passengers at a particular terminal. The drivers then retrieve the passengers and transport them to their destination before returning to the designated airport lot and waiting for the airport dispatcher's next call. The Airport provides a breakroom for drivers.

¶8 Kardakh Danial drives a AAA taxicab and operates exclusively from the Airport. He signed AAA's standard lease agreement in 2002, which has since been annually renewed. He was injured in May 2016 while driving airport passengers in a AAA leased taxicab and requested workers' compensation benefits from AAA's insurer, which were denied. He filed a timely protest with the ICA.

¶9 An administrative law judge ("ALJ") conducted a two-day hearing. She heard testimony from Danial and his brother, who also leases a AAA cab, along with AAA's present and former fleet managers. The ALJ entered an award for a non-compensable claim. Though characterizing it as a "close call," the ALJ found that Danial was an independent contractor because the AAA "exercised very little direction or control over the details of [Danial's] work." Danial requested administrative review, but the ALJ summarily affirmed the award.

¶10 Danial timely challenged the ruling. This court has jurisdiction pursuant to A.R.S. § 12-120.21(A)(2) and § 23-951(A), as well as Arizona Rule of Procedure for Special Actions 10.

DISCUSSION

¶11 The sole issue is whether Danial is an independent contractor or AAA employee under A.R.S. § 23-902. Danial maintains he is an employee. The ALJ found he was an independent contractor. Whether Danial is an independent contractor or employee is a question of law that we review de novo . Vance Int'l v. Indus. Comm'n, 191 Ariz. 98, 100, ¶ 6, 952 P.2d 336 (App. 1998). We defer to the ALJ's factual findings unless no reasonable evidence supports them and view the evidence in the light most favorable to upholding the award. Micucci v. Indus. Comm'n , 108 Ariz. 194, 195, 494 P.2d 1324 (1972).

¶12 An employee who is injured in the course of employment is generally entitled to compensation for loss sustained on account of the injury. A.R.S. § 23-1021. A factual predicate for recovery, however, is the existence of an employer-employee relationship. An independent contractor is not an employee for purposes of workers' compensation law. See Munoz v. Indus. Comm'n , 234 Ariz. 145, 149, ¶ 12, 318 P.3d 439 (App. 2014). The legislature has drawn the line between employees and independent contractors in this context as follows:

When an employer procures work to be done for the employer by a contractor over whose work the employer retains supervision or control, and the work is a part or process in the trade or business of the employer, then the contractors and the contractor's employees, and any subcontractor and the subcontractor's employees, are, within the meaning of this section, employees of the original employer. For the purposes of this subsection, "part or process in the trade or business of the employer" means a particular work activity that in the context of an ongoing and integral business process is regular, ordinary or routine in the operation of the business or is routinely done through the business' own employees.
A person engaged in work for a business, and who while so engaged is independent of that business in the execution of the work and not subject to the rule or control of the business for which the work is done, but is engaged only in the performance of a definite job or piece of work, and is subordinate to that business only in effecting a result in accordance with that business design, is an independent contractor .

A.R.S. § 23-902(B)-(C) (emphases added).

¶13 Arizona courts have adopted the control test to distinguish between employees and independent contractors in workers' compensation cases. The distinction turns on a prospective employer's right "to control the details of the work." Cent. Mgmt. Co. v. Indus. Comm'n , 162 Ariz. 187, 189, 781 P.2d 1374 (App. 1989) (quoting 1C A. Larson, Workmen's Compensation Law § 44.10 (1986) ); see also Home Ins. Co. v. Indus. Comm'n , 123 Ariz. 348, 350, 599 P.2d 801 (1979) ("The right to control or supervise the method of reaching a specific result determines whether an individual is an employee or an independent contractor."). The court examines the "objective nature of the relationship" when determining the character of an employment arrangement based upon "the totality of the facts and circumstances of each case." Anton v. Indus. Comm'n , 141 Ariz. 566, 568-69, 688 P.2d 192 (1984).

¶14 Arizona courts have recognized several nonexclusive indicia of control, including "the duration of the employment; the method of payment; who furnishes necessary equipment; the right to hire and fire; who bears responsibility for workmen's compensation insurance; the extent to which the employer may exercise control over the details of the work, and whether the work was performed in the usual and regular course of the employer's business." Home Ins. Co. , 123 Ariz. at 350, 599 P.2d 801.

¶15 The record supports the ALJ's finding that Danial was an independent contractor, not AAA's employee. AAA does not possess or exercise the degree or quality of control over its airport drivers to recognize an employee-employer relationship for workers' compensation purposes. Danial receives his general and minute-to-minute direction from the Airport and its dispatchers, not AAA. The Airport fixes his compensation in the form of passenger rates and fares. AAA earns no income from his passenger fares, only from his lease payments. The Airport also imposes fuel and additional hiring requirements on drivers. And while AAA has company rules, the Airport imposes almost all disciplinary action against AAA's airport drivers.

¶16 Second, Danial retains significant flexibility under the AAA lease agreement. He can simultaneously work for AAA and its competitors and terminate the lease without cause upon 45 days' notice, while AAA needs cause to terminate. He controls his own hours and driving schedule, keeps his fares and tips, and pays his own taxes. He is not subjected to regular AAA performance reviews and does not have personalized AAA business cards. If unable or unwilling to work, he can secure a AAA-approved relief driver to operate his cab.

¶17 We note the stark contrast in this regard with AAA's medical transport drivers, who drive patients to medical providers in non-emergency settings. AAA hires the medical drivers as AAA employees. The medical drivers receive biweekly AAA payroll checks with tax withholding. AAA fixes their work hours and pays for their gasoline.

¶18 Third, Danial's lease agreement expressly identifies him as an independent contractor and specifies that AAA will not procure workers' compensation insurance. It further directs that Danial is responsible for his federal and state income taxes. Danial also "agree[d] to accept full responsibility for any and all injuries" and "to make no claim for workmen's compensation or unemployment." Though not controlling, the terms of Danial's signed lease agreement only reinforce the ALJ's finding. Anton , 141 Ariz. at 568, 688 P.2d 192 ("We agree that neither the absence nor the presence of a written contract controls the resolution of the question of whether petitioner was an employee or an independent contractor.").

¶19 Danial argues that Central Management Company v. Industrial Commission , 162 Ariz. 187, 781 P.2d 1374 (App. 1989), controls and compels a different result. Central Management raised the same issue here. An ALJ found the claimant taxicab driver was an employee of the cab company under A.R.S. § 23-902, not an independent contractor, and this court affirmed. Id . But the facts and circumstances here and there are meaningfully different on the dispositive issue of control. The cab company in Central Management withheld and exerted far greater control over its drivers than does AAA over its airport drivers. State Comp. Fund v. Yellow Cab Co. of Phoenix , 197 Ariz. 120, 123, ¶¶ 9-10, 3 P.3d 1040 (App. 1999) (distinguishing Central Management where cab company exercised less control). The drivers here (unlike in Central Management ) receive their orders and service routes from the Airport and its dispatcher, not the cab company's dispatcher; the drivers here (unlike there) are disciplined almost exclusively by Airport authorities, not the cab company; the passenger fares here (unlike there) are set by the Airport, not the cab company; the drivers here (unlike there) can simultaneously work for any other cab company; the lease agreement here (unlike there) expressly specifies that drivers are independent contractors and disclaims workers' compensation insurance; the drivers here (unlike there) are not subject to continuous performance reviews; and the drivers here (unlike there) control their own work hours. Central Management , 162 Ariz. at 191, 781 P.2d 1374.

¶20 In sum, the record includes ample evidence to support the ALJ's finding that Danial was an independent contractor rather than AAA's employee.

CONCLUSION

¶21 We affirm.

      Danial insists that Santiago v. Phoenix Newspapers adopted several more factors from the Restatement (Second) of Agency and IRS guidelines "to determine a worker's employment status." 164 Ariz. 505, 794 P.2d 138 (1990). But Santiago considered the distinction between employees and independent contractors in the context of vicarious liability, not workers' compensation benefits. Id . at 512 n.6, 794 P.2d 138 ("We recognize that the law of workers' compensation carries with it unique historical and statutory provisions which may not be completely applicable to the theory of vicarious liability.").

      We note that state and local laws require AAA to exercise various indicia of control over its drivers, but government-required control is not normally ascribed to an employer under the control test in workers' compensation cases. See, e.g. , La Grande v. B & L Servs., Inc. , 432 So.2d 1364, 1367 (Fla. App. 1983) ("[I]t became evident that what little dress code there was (shoes, long pants and collared shirt) was required by local ordinance. Here again, we would note that governmental regulation of workers should not be visited upon the putative employer in determining whether the latter has such control over the worker as would establish an employment relationship.").

      While Danial testified he could not read English and did not understand the lease when he signed it, the record indicates that AAA reviews the lease agreement with new drivers "paragraph by paragraph" to ensure their understanding and orally explains to them that drivers are independent contractors, must provide their own insurance, and pay their own taxes.


source: Caselaw Access Project

author: VÁSQUEZ, Presiding Judge:

license: Public Domain

text:
    HOLLY C., Appellant, v. TOHONO O'ODHAM NATION, Brian S., and G.C., Appellees.
    No. 2 CA-JV 2018-0101
    Court of Appeals of Arizona, Division 2.
    Filed December 24, 2018
    Joel Feinman, Pima County Public Defender, By David J. Euchner and Jennifer G. Rochelle, Assistant Public Defenders, Tucson, Counsel for Appellant
    Joshua Rees, Tohono O'odham Nation Acting Attorney General, By Jennifer L. Espino, Assistant Attorney General, Sells, Counsel for Appellee Tohono O'odham Nation
    Jacqueline Rohr, Tucson, Counsel for Appellee Brian S.
    Pima County Office of Children's Counsel, Tucson, By Sybil Clarke, Counsel for Minor
    Presiding Judge Vásquez authored the opinion of the Court, in which Judge Espinosa and Judge Eppich concurred.
   VÁSQUEZ, Presiding Judge:

¶1 Holly C. appeals from the juvenile court's dismissal of a private dependency petition filed by her mother, Elizabeth F., who sought temporary custody of Holly's six-year-old son, G.C. Because Elizabeth F. failed to appeal from the dismissal order, and because we conclude Holly, as a respondent in the dependency proceeding, has not been legally "aggrieved" by the dismissal, see A.R.S. § 8-235(A) ; Ariz. R. P. Juv. Ct. 103(A), we dismiss this appeal for lack of jurisdiction.

¶2 Like his father, Brian S., G.C. is an enrolled member of the Tohono O'odham Nation ("the Nation"). Before Elizabeth filed her dependency petition, Holly and Brian were involved in a custody proceeding in the Nation's tribal court. In October 2017, pursuant to a stipulation by both parents, that court entered a "final, appealable order" awarding Brian sole decision-making authority and primary parenting time. Based on the same stipulation, the court scheduled a review hearing for December 2017 to determine whether "criminal charges pending against [Holly]" had been resolved and "to see if [she] should be awarded supervised parenting time given the concerns over her mental state and ability to parent [G.C.]." On February 20, 2018, the Arizona Department of Economic Security (ADES) acknowledged Brian's physical custody of G.C. and filed a motion to terminate his previously ordered child support obligations.

¶3 On March 16, 2018, before the trial court granted ADES's motion, Elizabeth filed a dependency petition in Pima County Juvenile Court in which she alleged Brian had a history of violent behavior and was neglecting G.C. In a supporting affidavit, she also alleged that Holly "has a history of mental health issues that make it difficult for her [to] parent right now" and, also, "is on probation for a felony offense." In temporary orders entered pursuant to A.R.S. § 8-841(F), the juvenile court ordered the Department of Child Safety (DCS) to conduct an investigation, including "a safety check of the child(ren)'s home," but it declined Elizabeth's request that she be awarded temporary custody.

¶4 At the initial dependency hearing in April 2018, DCS told the juvenile court, "Our report documents that we do not believe that a dependency exists at this time," and, after confirming that there were no objections, the court granted DCS's request to be excused from further proceedings. At the same hearing, Brian entered a special appearance for the purpose of challenging jurisdiction and service and filed a motion to dismiss the dependency on those grounds. In it, he argued the Nation had "continuing, exclusive jurisdiction" over G.C.'s custody pursuant to both the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901 - 1963, and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), A.R.S. §§ 25-1001 to 25-1067. The Nation also appeared and informed the court it had not yet been properly served with the dependency petition.

¶5 The juvenile court scheduled briefing on Brian's motion to dismiss and continued the hearing until May 15, 2018. On that day, after conferring with the tribal court judge who was presiding over the Nation's custody proceeding and entertaining argument by the parties, the juvenile court granted Brian's motion to dismiss for lack of jurisdiction. On May 29, 2018, Holly filed a timely notice of appeal from the court's signed minute entry, which was filed on May 18, 2018. Elizabeth did not. See Ariz. R. P. Juv. Ct. 104(A) (notice of appeal from juvenile court "shall be filed with the clerk of the superior court no later than 15 days after the final order is filed with the clerk").

¶6 This court has an independent duty to consider its own jurisdiction, see In re Reymundo F. , 217 Ariz. 588, n.1, 177 P.3d 330 (App. 2008) ; see also State v. Serrano , 234 Ariz. 491, ¶ 4, 323 P.3d 774 (App. 2014) (appellate court's "jurisdiction is provided and limited by law"), which, in this instance, is limited to appeals by any party "aggrieved" by "a final order of the juvenile court," § 8-235(A). "Parties cannot confer jurisdiction upon this court by agreement, by stipulation, or ... by invited error or forfeiture." Serrano , 234 Ariz. 491, ¶ 4, 323 P.3d 774 (citations omitted).

¶7 We recognize that Holly joined Elizabeth in opposing the dismissal of the dependency, but, because Holly is the respondent in a dependency proceeding filed against her and Brian, we conclude she has not suffered a legally cognizable grievance from the dismissal of that action. "To qualify as an aggrieved party, the judgment must operate to deny the party some personal or property right or to impose a substantial burden on the party."

Jewel C. v. Dep't of Child Safety , 244 Ariz. 347, ¶ 3, 418 P.3d 1120 (App. 2018) (quoting In re Pima Cty. Juv. Action No. B-9385 , 138 Ariz. 291, 293, 674 P.2d 845 (1983) ). In this dependency action, the juvenile court entered no order affecting Holly's parental rights-it instead dismissed a proceeding filed by Elizabeth calling into question Holly's ability to parent G.C.

¶8 Although Elizabeth, as the only petitioner in the dependency proceeding, was aggrieved by its dismissal, she failed to file a timely notice of appeal that would have afforded this court jurisdiction on review. Because we lack jurisdiction to proceed, this appeal is dismissed.

      ADES's unopposed motion to terminate child support was granted on April 2, 2018.

      At an initial dependency hearing, Elizabeth told the juvenile court she had filed the dependency petition because she "believe[s] that neither [Brian] nor [Holly] is able or capable of having the care, custody, and control of the child at this time."

      The Nation supported Brian's motion to dismiss, and G.C. appeared to support the dismissal as well, telling the court, "At most," the juvenile court "might have emergency jurisdiction," but the Nation is "the primary jurisdictional court." Holly joined Elizabeth in opposing the dismissal.

      On September 4, 2018, more than three months after Holly filed her notice of appeal, Elizabeth filed a "Notice of Joinder" purporting to "join[ ] in Holly C.'s opening brief." Although Rule 104(C)(2), Ariz. R. P. Juv. Ct., provides that "any party to the proceeding from which the appeal arises ... may file ... and serve ... a notice stating that the party ... does not intend to participate actively in the appeal and instead adopts and agrees in advance to be bound by the appellate positions, filings, representations, actions, and omissions" of another "specifically identified" party, that provision does not apply here. First, there is no evidence on this record that Elizabeth filed such a notice "[n]o later than 10 calendar days" after service of Holly's notice of appeal or filed it "with the clerk of the superior court," as required by that rule. Id. More critically, the rule expressly provides, "A notice under this subsection may not be used or relied upon as a substitute for a notice of appeal." Id. Elizabeth's belated notice of joinder thus had no effect on the question of our appellate jurisdiction.

      In other circumstances, a child such as G.C. might also be aggrieved by the dismissal of a dependency proceeding, giving rise to his right to appeal pursuant to § 8-235(A). In this case, however, G.C. is named as an appellee, and he urges this court to affirm the juvenile court's ruling.


text:
    In re Anthony T. ACCETTA, Plaintiff, v. BROOKS TOWERS RESIDENCES CONDOMINIUM ASSOCIATION, INC., a Colorado Nonprofit Corporation; Mark Trenka, Marla Grant, Bill Clarke, Clay Courter, Robb Green, Alton Darby, Joan Foster, and Jeanne Root, in Their Capacities as Members of the Board of Directors of the Brooks Towers Residences Condominium Association, Inc., Defendants.
    Supreme Court Case No. 18SA127
    Supreme Court of Colorado.
    February 11, 2019
    Attorneys for Plaintiff: Podoll & Podoll, P.C., Robert C. Podoll, Greenwood Village, Colorado, Foley & Mansfield, PLLP, Dustin J. Priebe, Englewood, Colorado
    Attorneys for Defendants: Nemirow Perez P.C., Miles Buckingham, Ronald H. Nemirow, Lakewood, Colorado
    En Banc
   JUSTICE GABRIEL delivered the Opinion of the Court.

¶1 In this original proceeding pursuant to C.A.R. 21, we review the district court's order requiring plaintiff Anthony Accetta to join the approximately 500 individual unit owners in the Brooks Tower Residences ("Brooks Tower") as indispensable parties in the present action, rather than proceeding solely against defendants Brooks Towers Residences Condominium Association, Inc. and its board members (collectively, the "Association").

¶2 Accetta seeks, among other things, a declaratory judgment that would invalidate, as contrary to the Colorado Common Interest Ownership Act ("CCIOA"), sections 38-33.3-101 to - 402, C.R.S. (2018), the provision of the Amended and Restated Declaration of Covenants, Conditions and Restrictions of the Association (the "Declaration") that provides for ownership interests to be allocated in the sole discretion of the declarant of that Declaration (the "Declarant"). Accetta contends that this provision violates CCIOA's requirement that ownership interests be allocated by formula and has resulted in his paying association dues in excess of his fair share.

¶3 On the Association's motion to dismiss for failure to join indispensable parties, the district court concluded that all of the Brooks Tower unit owners are indispensable parties and must be joined. We issued a rule to show cause and now conclude that, because the Association can adequately represent the interests of the absent unit owners for purposes of Accetta's declaratory judgment claim in this case, Accetta need not join those absent owners. Accordingly, we make the rule to show cause absolute.

I. Facts and Procedural Background

¶4 Accetta and his wife own a condominium in Brooks Tower. Brooks Tower is comprised of 566 residential units, 13 commercial units, and 297 associated garage units.

¶5 All Brooks Tower unit owners are governed by the Declaration, which allocates condominium fees among the unit owners based on the "value" of each unit. As pertinent here, this value (1) "may or may not be the list price of the Unit as quoted to prospective third-party purchasers" as of the date of the declaration; (2) is determined "in Declarant's sole and arbitrary discretion"; (3) is to be used for the purpose of computing the unit owners' percentage interests in Brooks Tower's common elements; and (4) "shall be final and conclusive."

¶6 Accetta asserts that his unit has been allocated association dues that are over fifty percent higher than the dues allocated to comparable units and that this misallocation has resulted in hundreds of dollars in monthly overcharges. Accordingly, he filed the present action against the Association seeking, among other things, a declaratory judgment invalidating the portion of the Declaration allowing the Declarant to allocate values in its "sole and arbitrary discretion," rather than by way of a formula that allocates percentage ownership consistently among comparable units. Accetta specifically contends that the provision at issue violates CCIOA and is therefore "invalid or otherwise void and must be reformed to comply with the requirements of [CCIOA] and the obligation of good faith."

¶7 The Association moved to dismiss Accetta's complaint, arguing, in pertinent part, that he failed to join indispensable parties, namely, the individual unit owners in Brooks Tower. Specifically, the Association contended that, because the declaratory judgment that Accetta sought could affect the other unit owners' interests, he was required to join those owners pursuant to C.R.C.P. 19(a), C.R.C.P. 57(j), and section 13-51-115, C.R.S. (2018).

¶8 The district court ultimately denied the Association's motion to dismiss, but it agreed with the Association that Accetta was required to join all of the other unit owners before the case could proceed. The court reasoned that, because the other unit owners would be affected by any declaratory judgment concerning the legality of the pertinent provisions of the Declaration, Accetta was required to join them under C.R.C.P. 57(j).

¶9 Accetta petitioned this court for relief under C.A.R. 21, requesting that we issue a rule to show cause why the district court's ruling should not be vacated. We issued the requested rule, and we have had the benefit of full briefing and oral argument in this matter.

II. Analysis

¶10 We begin by discussing our jurisdiction to hear this matter and the applicable standard of review. We then consider the law applicable to the joinder questions presented, and we conclude that, because the Association can adequately represent the absent unit owners' interests for purposes of Accetta's declaratory judgment claim in this case, Accetta need not join those absent owners pursuant to C.R.C.P. 19(a), C.R.C.P. 57(j), and section 13-51-115.

A. Original Jurisdiction and Standard of Review

¶11 Exercise of our original jurisdiction under C.A.R. 21 is within our sole discretion. Fognani v. Young , 115 P.3d 1268, 1271 (Colo. 2005). An original proceeding under C.A.R. 21 is an extraordinary remedy that is limited in both its purpose and availability. Wesp v. Everson , 33 P.3d 191, 194 (Colo. 2001). We generally elect to hear C.A.R. 21 matters that raise issues of first impression and that are of significant public importance, and we have exercised our original jurisdiction to review novel questions of statutory interpretation. See Smith v. Jeppsen , 2012 CO 32, ¶ 6, 277 P.3d 224, 226.

¶12 The question that Accetta asks us to resolve here, which involves the construction and interplay of CCIOA and the rules and statutes concerning declaratory relief and the indispensable parties thereto, is one of first impression for this court. Moreover, the issue is one of significant public importance because (1) it potentially affects condominium litigation throughout the state of Colorado and (2) it implicates substantial issues of access to justice. Finally, appellate relief would likely be inadequate in this case because the significant expense of joining and serving some 500 other parties could render Accetta's pursuit of his claims cost prohibitive. See People v. Dist. Court , 953 P.2d 184, 187 (Colo. 1998) ("[O]riginal jurisdiction under C.A.R. 21 is appropriate 'when appeal would not provide a plain, speedy, and adequate remedy.' ") (quoting People v. Young , 814 P.2d 834, 838 (Colo. 1991) ).

¶13 We therefore conclude that the exercise of our original jurisdiction is appropriate here.

¶14 Because the issue before us concerns the intersection of the appropriate legal standard for joinder and the legal effect of CCIOA, we review the district court's decision on this issue de novo. See State v. Medved , 2019 CO 1, ¶ 13, 433 P.3d 33 (noting that we review questions of law de novo).

B. Applicable Legal Principles

¶15 C.R.C.P. 19(a) requires a person properly subject to service of process in an action to be joined as a party in that action if:

(1) In his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may: (A) As a practical matter impair or impede his ability to protect that interest or (B) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.

¶16 C.R.C.P. 57(j) and section 13-51-115 apply similar joinder principles in the context of declaratory judgment actions. Those provisions require joinder of all persons "who have or claim any interest which would be affected by the declaration," and they state that "no declaration shall prejudice the rights of persons not parties to the proceeding." § 13-51-115 ; C.R.C.P. 57(j).

¶17 As the foregoing provisions make clear, merely having an interest in the outcome of an action is insufficient to require joinder. Gibbs Wire & Steel Co. v. Johnson , 255 F.R.D. 326, 329 (D. Conn. 2009). Rather, joinder is required when absent parties' ability to protect their interests would be impaired or impeded due to their absence, as, for example, when a requested declaratory judgment could prejudice their rights. § 13-51-115 ; C.R.C.P. 19(a) ; C.R.C.P. 57(j).

¶18 Although this court has yet to weigh in on the range of factors that courts should consider in determining whether joinder is required, a division of our court of appeals has observed that, in making such a determination, courts consider, among other things, whether the absent party's interests will be adequately represented based on the current posture of the case. Kowalchik v. Brohl , 2012 COA 49, ¶ 12 n.4, 411 P.3d 681, 686 n.4. Numerous federal courts have expressed the same view. See, e.g. , Ohio Valley Envtl. Coal. v. Bulen , 429 F.3d 493, 504-05 (4th Cir. 2005) (perceiving no abuse of discretion in the district court's determination that joinder was not required when the parties in the litigation were "capable of representing the interests of the [absent parties]"); Hooper v. Wolfe , 396 F.3d 744, 749 (6th Cir. 2005) ("When assessing prejudice, the court must consider whether the interests of an absent party are adequately represented by those already a party to the litigation."); Ramah Navajo Sch. Bd., Inc. v. Babbitt , 87 F.3d 1338, 1351 (D.C. Cir. 1996) ("If the nonparties' interests are adequately represented by a party, the suit will not impede or impair the nonparties' interests, and therefore the nonparties will not be considered 'necessary.' "); Makah Indian Tribe v. Verity , 910 F.2d 555, 558 (9th Cir. 1990) ("Impairment [of an absent party's interests] may be minimized if the absent party is adequately represented in the suit."); Wichita & Affiliated Tribes of Okla. v. Hodel , 788 F.2d 765, 774 (D.C. Cir. 1986) ("In some cases the prejudice created by the relevant party's absence is mitigated, or even eliminated, by the presence of a party who will represent the absent party's interest."); Gibbs Wire & Steel Co. , 255 F.R.D. at 329 (noting that, if nonparties' interests are adequately represented by a party, then the suit will not impede or impair the nonparties' interests and thus the nonparties need not be joined).

¶19 To determine whether a present party adequately represents the interests of an absent party, courts have considered whether (1) the present party's interests " 'are such that it will undoubtedly make all' of the absent party's arguments"; (2) the present party is " 'capable of and willing to make such arguments' "; and (3) "the absent party would 'offer any necessary element to the proceedings' that the present [party] would neglect." Shermoen v. United States , 982 F.2d 1312, 1318 (9th Cir. 1992) (quoting Cty. of Fresno v. Andrus , 622 F.2d 436, 439 (9th Cir. 1980) ); accord Martinez v. Clark Cty. , 846 F.Supp.2d 1131, 1148 (D. Nev. 2012).

¶20 Applying factors such as these, courts have concluded that joinder was not required when the interests of the absent parties were aligned with those of any of the present parties. See, e.g. , Bulen , 429 F.3d at 504-05 (affirming the district court's determination that coal associations could adequately represent absent parties because the associations were arguing on behalf of their members, including members whose interests coincided with those of the absent parties); United States v. Supreme Court of N.M. , 980 F.Supp.2d 1334, 1345 (D.N.M. 2013) (concluding that joinder was not required when the absent parties' interests were adequately represented by the defendants and noting particularly that joinder is not required "where the absent party's interests are aligned with an existing party"), aff'd , 839 F.3d 888 (10th Cir. 2016) ; Gibbs Wire & Steel Co. , 255 F.R.D. at 330 (noting that joinder was unnecessary, even though, if joined, some absent parties would align with the plaintiff and others with the defendants, because, in either case, the rights that the absent parties were seeking to vindicate would be adequately protected by one of the existing parties).

¶21 Similarly, one court has concluded that joinder was not required in a case involving a challenge by federal prosecutors to the application of a state disciplinary rule to them. Supreme Court of N.M. , 980 F.Supp.2d at 1345. In that case, federal prosecutors challenged the application to them of a state rule of professional conduct limiting when they could subpoena lawyers in grand jury or other proceedings to present evidence about past or present clients. Id. at 1336. As pertinent here, the court was asked to decide whether attorneys who might potentially be affected under the rule were necessary and indispensable parties and whether the prosecutors' failure to join them mandated dismissal of the action. Id. The court concluded that the absent parties were not necessary and indispensable because the state regulators who were seeking to "champion" the disciplinary rule had the same interest in defending the rule as the absent attorneys who could be affected by an adverse ruling in the case. Id. at 1345.

¶22 And in a case against a county and certain county and state officials challenging a state statute permitting a person to obtain a certificate to solemnize a marriage only if the person was affiliated with a religious organization, the court held that people already holding certificates did not need to be joined. Martinez , 846 F.Supp.2d at 1136, 1149. In so ruling, the court reasoned that joinder was unnecessary because the defendants in the case already had the responsibility and ability to defend the laws at issue against constitutional challenges, which is what the absent parties also would have sought to do. See id. at 1149.

¶23 We are persuaded by the analyses set forth in the above-described case law, and we follow the principles discussed in those cases. Applying those principles here, we conclude for several reasons that the absent unit owners need not be joined.

¶24 First, in oral argument, the Association conceded that "the legality of a declaration provision is an issue on which the Association can adequately represent the interests of absent owners." Accordingly, by the Association's admission, joinder of the absent unit owners is unnecessary, at least to the extent that Accetta is seeking a declaratory judgment as to the legality of the Declaration provision at issue.

¶25 Second, several provisions of CCIOA reflect a legislative determination that a unit owners' association can represent the interests of its members, at least in certain circumstances. For example, section 38-33.3-301 provides that every common interest community must have a unit owners' association and that "[t]he membership of the association at all times shall consist exclusively of all unit owners." Section 38-33.3-302(1)(d), in turn, expressly authorizes the association to represent individual unit owners in defense of litigation:

Except as provided in subsections (2) and (3) of this section, and subject to the provisions of the declaration, the association, without specific authorization in the declaration, may ... [i]nstitute, defend, or intervene in litigation or administrative proceedings in its own name on behalf of itself or two or more unit owners on matters affecting the common interest community....

¶26 Third, the Association is already defending the legality of the Declaration provision at issue, and, in this regard, its interests would be fully aligned with those of any absent unit owners who would want to preserve the status quo and defeat Accetta's declaratory judgment claim. See Supreme Court of N.M. , 980 F.Supp.2d at 1345 (finding that joinder was not required when the existing parties were already championing the challenged disciplinary rule and, in that regard, had the same interest as the absent parties who likewise wished to uphold the rule); Martinez , 846 F.Supp.2d at 1149 (noting that joinder was unnecessary when the existing defendants had the responsibility and ability to defend a state statute against constitutional challenges and the absent parties would likewise have sought to uphold that statute).

¶27 For these reasons, we conclude that the Association can adequately represent the interests of the absent unit owners with respect to Accetta's claim for a declaratory judgment that the Declaration provision at issue is unlawful. Accordingly, we further conclude that joinder of the absent owners is not required here.

¶28 The division's opinion in Clubhouse at Fairway Pines, L.L.C. v. Fairway Pines Estates Owners Ass'n , 214 P.3d 451 (Colo. App. 2008), on which the Association relies, is not to the contrary. The analysis in that case tracks the analysis that we employ here, but the division concluded, on the facts presented, that the association in that case could not adequately represent the absent owners. Id. at 453-57. For the reasons discussed above, the record mandates a different conclusion here.

¶29 In addition, we are unpersuaded by the Association's assertion that joinder is necessary because Accetta seeks not only a declaratory judgment but also judicial reformation of the Declaration. In our view, the Association misunderstands the nature of the relief that Accetta requests.

¶30 As we understand it, Accetta seeks a declaratory judgment that the Declaration provision at issue is "invalid or otherwise void and must be reformed to comply with the requirements of [CCIOA] and the obligation of good faith." Accetta's complaint does not ask the district court to craft new language for the Declaration, nor do any of the parties before us suggest that the district court here would engage in a process to renegotiate the terms of the Declaration.

¶31 Moreover, in oral argument, Accetta clarified that he was only seeking a declaration that the allocation provision of the Declaration is invalid under CCIOA:

The overriding relief that's requested by Mr. Accetta in this complaint is the fact that he cannot be overcharged HOA dues in violation of CCIOA ... and that shouldn't require him to individually name hundreds of other unit owners. At this point in time, that's the declaration that we believe we're entitled to, and that's what we're seeking in this case.

¶32 Thus, were Accetta to prevail on his declaratory judgment claim, the result would be a declaration that the allocation provision at issue is void as contrary to CCIOA and that the Association must reform it.

¶33 In light of the foregoing, we perceive the claim at issue to involve solely a request for declaratory relief concerning the validity of a Declaration provision. Because the Association can adequately represent the absent owners with respect to such a claim, we conclude that Accetta need not join the absent unit owners in this case.

III. Conclusion

¶34 For the foregoing reasons, we conclude that the Association can adequately represent the interests of the absent unit owners for purposes of Accetta's declaratory judgment claim in this case. Accordingly, Accetta need not join those unit owners as parties pursuant to C.R.C.P. 19(a), C.R.C.P. 57(j), and section 13-51-115.

¶35 We therefore make the rule to show cause absolute.

      In his complaint, Accetta also asserts a number of claims seeking recovery of the excessive fees that he alleges to have paid the Association as a result of the Declaration provision at issue. None of these damages claims, however, implicates the interests of the other unit owners so as to warrant possible joinder in this case, and therefore these claims are not pertinent to the issue now before us.

      In light of this disposition, we need not address and express no opinion on Accetta's contention that section 38-33.3-311(1) controls and makes clear that joinder is not required in this case.


author: Opinion by JUDGE TAUBMAN JUDGE GABRIEL dissenting.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. George J. RUIBAL, Defendant-Appellant.
    Court of Appeals No. 13CA0276
    Colorado Court of Appeals, Division I.
    Announced May 7, 2015
    Cynthia H. Coffman, Attorney General, Jacob R. Lofgren, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
    Dean Neuwirth P.C., Dean Neuwirth, Denver, Colorado, for Defendant-Appellant
   Opinion by JUDGE TAUBMAN

¶ 1 Defendant, George J. Ruibal, appeals his judgment of conviction and sentence to forty years imprisonment entered on a jury verdict finding him guilty of second degree murder. Addressing an issue of first impression, we conclude that the trial court did not abuse its discretion in admitting expert testimony premised on the theory that victim "overkill" suggests that a perpetrator in a domestic violence situation had a real or perceived emotional attachment to the victim.

¶ 2 Therefore, we affirm the judgment. We also affirm Ruibal's sentence.

I. Background

¶ 3 The victim, D.P., was fatally beaten sometime during a December weekend in 2007. She died in the apartment that she and Ruibal shared. On the following Monday evening, Ruibal's coworker drove him home. Ruibal invited the coworker up to his apartment, and the two discovered D.P.'s body on the couch.

¶ 4 The prosecution charged Ruibal with D.P.'s murder. At trial, Ruibal presented an alternate suspect defense, asserting that D.P. was randomly assaulted by their neighbor, J.D., during a trip to the grocery store on Saturday evening. J.D. is a large man with a history of domestic violence. According to Ruibal, D.P. returned from the store bearing visible bruises, but refused to go to the hospital. He further alleged that D.P. was alive when he left for work on Monday morning, and that he was unaware of the severity of her injuries until he returned that evening. The prosecution theorized that, in an act of domestic violence, Ruibal assaulted D.P. in their apartment on Saturday evening, and that D.P. died sometime on Sunday or Monday from injuries sustained in the beating.

¶ 5 The prosecution introduced the testimony of a forensic pathologist on evidence of "overkill." The pathologist explained that "overkill" means multiple injuries to one area of the body. He further stated that when he perceives "overkill" during an autopsy, he informs the police that the perpetrator likely had a real or perceived emotional attachment to the victim. He based his expert opinion on both a scientific treatise and his own experience.

¶ 6 The jury convicted Ruibal of second degree murder, and the trial court sentenced him to forty years in prison followed by five years of mandatory parole.

II. Domestic Violence Expert Testimony

¶ 7 Ruibal contends that the trial court erred when it did not give a limiting instruction during the testimony of the prosecution's domestic violence expert. Specifically, he asserts that CRE 404(b) and section 18-6-801.5(5), C.R.S.2014, required the court to give a limiting instruction for the testimony of the domestic violence expert, because her testimony placed previously admitted Rule 404(b) evidence within the context of an abusive relationship. We disagree.

A. Standard of Review

¶ 8 In addressing Ruibal's contention, we must consider when CRE 404(b) and section 18-6-801.5(5) require the trial court to give a limiting jury instruction, a question of statutory interpretation which we review de novo. People v. Steen, 2014 CO 9, ¶ 9, 318 P.3d 487, 490.

B. Applicable Law

¶ 9 CRE 404(b) and section 18-6-801.5 permit a trial court to admit evidence of other acts of domestic violence between a defendant and a victim if offered to show common plan, scheme, design, identity, modus operandi, motive, guilty knowledge, or some other purpose. People v. Torres, 141 P.3d 931, 934 (Colo.App. 2006) ; People v. Gross, 39 P.3d 1279, 1282 (Colo.App.2001). In such cases, the trial court must instruct the jury as to the limited purpose for which the other act evidence is admissible. § 18-6801.5(5).

C. Analysis

¶ 10 The prosecution called seven witnesses who testified to prior instances of domestic violence between Ruibal and D.P. Before each witness's testimony, the court read to the jury the limiting instruction required by section 18-6-801.5(5), and included a written version in the final jury instructions.

¶ 11 After the CRE 404(b) witnesses testified, the prosecution presented the testimony of a domestic violence expert who explained the dynamics of an abusive relationship. She testified that the crux of domestic violence is the exertion of power and control by the relationship's abusive member. Specifically, she testified that the act of strangulation is an intimate act in which the abuser looks into the face of the victim, and that abusive relationships undergo a recurring three-stage "cycle of violence," in which the level of violence exerted escalates over time.

¶ 12 However, the domestic violence expert, qualified under CRE 702, did not specifically reference any prior acts of domestic violence between Ruibal and D.P., and her testimony was not admitted through CRE 404(b) or section 18-6-801.5(2). Rather, she merely explained the general dynamics that exist in abusive relationships. See § 18-6-801.5(1) ("[D]omestic violence is frequently cyclical in nature, involves patterns of abuse, and can consist of harm with escalating levels of seriousness."). Furthermore, the expert was unfamiliar with the facts of Ruibal's case, and did not opine on the specifics of the relationship between Ruibal and D.P.

¶ 13 In fact, the trial court expressed concerns that an instruction similar to the one given during the CRE 404(b) testimony could prejudice Ruibal. The court explained that by giving such an instruction for a witness who was not a fact witness, it could lead the jury to consider the expert's testimony as "fact evaluative," and not for its intended purpose of providing background on the nature of domestic violence.

¶ 14 Based on these circumstances, we conclude that the trial court did not err when it declined to give a limiting instruction during the testimony of the prosecution's domestic violence expert.

III. "Overkill" Testimony

¶ 15 Ruibal contends that the trial court abused its discretion when it permitted a pathologist to present expert testimony regarding victim "overkill." His contention here is twofold. First, he asserts that the trial court violated CRE 702 and People v. Shreck, 22 P.3d 68, 77 (Colo.2001), when it admitted scientifically unreliable "overkill" testimony without making a specific finding as to its reliability. Second, he argues that the trial court violated CRE 703 when it permitted the introduction, through expert testimony, of inadmissible hearsay evidence. We perceive no reversible error.

A. Standard of Review

¶ 16 We review a trial court's CRE 703 ruling for an abuse of discretion. See People v. Valencia, 257 P.3d 1203, 1206 (Colo.App.2011). Further, trial courts have broad discretion to determine the admissibility of expert testimony, and we will not overturn a court's decision absent a showing of an abuse of discretion. Estate of Ford v. Eicher, 250 P.3d 262, 266 (Colo.2011).

¶ 17 Ruibal objected to the "overkill" testimony and to the prosecution's alleged CRE 703 violation; therefore, we review for harmless error and will reverse only if the error "substantially influenced the verdict or affected the fairness of the trial proceedings." Hagos v. People, 2012 CO 63, ¶ 12, 288 P.3d 116, 119.

B. CRE 702

¶ 18 CRE 702 permits the testimony of expert witnesses, qualified by their knowledge, skill, experience, training, or education, if the trial court determines that it will assist the trier of fact to understand the evidence or determine a fact in issue. Shreck, 22 P.3d at 77.

¶ 19 Before admitting expert testimony, a trial court must consider whether (1) the scientific principles underlying the testimony are reasonably reliable; (2) the expert is qualified to opine on such matters; (3) the expert testimony will be helpful to the jury; and (4) pursuant to CRE 403, the evidence's probative value is not outweighed by the danger of unfair prejudice. Id. Finally, "[w]hen the trial court makes a determination of relevance and reliability under CRE 702, it is required to issue specific findings regarding its analysis." Estate of Ford, 250 P.3d at 266.

¶ 20 Here, the prosecution introduced the testimony of a forensic pathologist on evidence of "overkill." He testified that when he observes multiple injuries to one area of the body, he informs the police that the perpetrator likely had a real or perceived emotional attachment to the victim. The prosecution introduced the pathologist's testimony to put D.P.'s injuries in context for the jury, and to prove that the perpetrator likely had an emotional attachment to her, thus tending to disprove Ruibal's alternate suspect theory.

¶ 21 Before admitting the pathologist's testimony, the court held a hearing to determine its admissibility. Specifically, it considered one scientific treatise that addressed the theory of "overkill" in its section on sharp force injuries. After the parties presented their arguments, the court concluded that the "overkill" testimony would be helpful to the jury by putting into context the type and nature of the injuries suffered by D.P. The court also concluded that the testimony satisfied CRE 403 because its probative value outweighed any danger of unfair prejudice. Later, during the pathologist's direct examination, the court concluded that he was qualified to offer an expert opinion on "overkill" evidence.

¶ 22 However, the trial court did not make a specific finding, as required by Shreck, that the scientific principles underlying the "overkill" testimony were reasonably reliable. 22 P.3d at 77.

¶ 23 While it would have been preferable for the court to have specifically found that the "overkill" testimony was reliable, we conclude that this oversight does not warrant reversal or remand.See Tatum v. Basin Res., Inc., 141 P.3d 863, 869 (Colo.App.2005) (absence of specific findings on reliability of underlying scientific principle does not warrant reversal where findings can be inferred from trial court's ruling); People v. McAfee, 104 P.3d 226, 229 (Colo.App.2004) (same); People v. Johnson, 74 P.3d 349, 353 (Colo.App.2002) (same); see also People v. Jimenez, 217 P.3d 841, 868 (Colo.App.2008) ("[A]ny error in the degree of detail of the district court's findings did not prejudice defendant, and therefore any such error does not cast doubt on the reliability of the district court's decisions.").

¶ 24 We too conclude that by overruling Ruibal's objection to the "overkill" evidence, the trial court implicitly determined that the pathologist's expert testimony was based on a reliable scientific principle. While it should have entered specific findings on the reliability of the underlying scientific theories, the trial court did not commit reversible error when it admitted the "overkill" testimony without specifically finding that the underlying science was reliable.

¶ 25 We recognize that Colorado appellate courts have not addressed whether, under CRE 702, evidence of "overkill" is a reliable indicator of a perpetrator's identity. However, courts in other jurisdictions have relied on evidence of "overkill" to prove identity and intent in domestic violence cases. See, e.g., People v. Varela, No. B197473, 2008 WL 2764578, at *5 (Cal.Ct.App.2008) (unpublished opinion) (evidence of overkill probative of defendant's mental state at time of killing); State v. Suttle, No. A-2417-08T3, 2011 WL 2314474, at *5 (N.J.Super. Ct.App. Div. June 10, 2011) (unpublished opinion) ("The prosecutor also argued that the crime was 'personal' and was overkill based on the number of blows struck."); Richardson v. State, 83 S.W.3d 332, 339 (Tex.Crim.App.2002) (relying on expert testimony that "crimes of passion are generally overkills with dozens and dozens of stab wounds").

¶ 26 Further, our conclusion is consistent with the broad discretion given to trial courts in admitting expert testimony in domestic violence cases. See, e.g., People v. Lafferty, 9 P.3d 1132, 1135 (Colo.App.1999) (and cases cited therein). Because jurors may not have experience with domestic violence, expert testimony is often relied on to explain victim and defendant behavior in such cases. See Myrna S. Raeder, The Better Way: The Role of Batterers' Profiles and Expert "Social Framework" Background in Cases Implicating Domestic Violence, 68 U. Colo. L.Rev. 147, 182-83 (1997) ("[W]ithout a shared background regarding domestic violence, jurors are less likely to believe that batterers' admitted killings are premeditated and may consider that the 'overkill' associated with victims of domestic violence has no relevance to whether the murderer was her abusive mate or a stranger.") (footnote omitted). For example, expert testimony is often necessary to explain victims' recantations, and the escalating nature of abusive relationships. People v. Wallin, 167 P.3d 183, 187 (Colo.App.2007) ; see also People v. Yaklich, 833 P.2d 758 (Colo.App.1991) (evidence of battered woman syndrome admissible to establish a defense of self-defense); Lafferty, 9 P.3d at 1135 (expert testimony about "cycle of violence" syndrome admissible to explain victim's recantation about assault).

¶ 27 Ruibal also contends that the pathologist's "overkill" theory is unreliable. Specifically, he asserts that the pathologist's reliance on a single treatise was misplaced because (1) overkill is addressed only in the section of the treatise involving sharp force injuries, such as stabbings, and (2) the treatise is not an "authoritative text."

¶ 28 First, that "overkill" is addressed only in the sharp force injury context does not make the theory inapplicable or unreliable in the circumstances presented here. The trial court could reasonably have analogized the treatise's analysis to the facts here, which involved allegations that Ruibal repeatedly punched and kicked D.P.

¶ 29 Second, the pathologist later explained that the difference between an authoritative text and a learned treatise is semantic. Specifically, he testified that while both authoritative texts and learned treatises are grounded in medical observations and testing, an authoritative text is one that theoretically cannot be challenged. The pathologist explained that he would not characterize the treatise in question as "authoritative," mainly because "medical science marches forward" and something that was authoritative "ten years ago may well be completely unreasonable [today]." Furthermore, CRE 702 does not require experts to rely only on "authoritative sources," but rather any "knowledge, skill, experience, training, or education." The pathologist relied not only on the learned treatise, but also on his own experience examining victims of domestic violence when he described the phenomenon of overkill.

¶ 30 Relying on People v. Ramirez, 155 P.3d 371, 379 (Colo.2007), Ruibal also contends the trial court abused its discretion in admitting the expert's overkill testimony because "a court may reject expert testimony that is connected to existing data only by a bare assertion resting on the authority of the expert." We disagree.

¶ 31 Here, the pathologist's testimony about overkill was more than a bare assertion. He testified that he had performed approximately 3000 autopsies, many of which involved multiple, focused injuries. Thus, he had ample experience to provide his expert opinion testimony about overkill.

¶ 32 Therefore, we conclude that the trial court did not err when it admitted the pathologist's "overkill" testimony without making a specific finding on its reliability.

C. CRE 703

¶ 33 CRE 703 provides that the facts or data on which an expert bases an opinion need not be admissible as evidence for the opinion to be admitted. However, it further provides that if such facts or data are themselves inadmissible, then they cannot be disclosed to the jury by the proponent "unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect."

¶ 34 On redirect examination, the pathologist expert explained that he based his "overkill" testimony, not only on scientific literature, but also his own experiences:

Prosecutor: In your experience and training you've personally seen these instances where you have these focused injuries ... during an autopsy?
Expert: Yes, of course it's been an experience. And I also have the experience of later knowing who confessed to doing what.

¶ 35 Ruibal objected that the pathologist's answer was inadmissible under CRE 703, but his objection was overruled. On appeal, Ruibal asserts that the expert's testimony implied that his experience was based on confessions. These confessions, he argues, constituted inadmissible hearsay evidence that should not have been admitted pursuant to CRE 703 without the trial court first determining that their probative value substantially outweighed their prejudicial effect. We disagree.

¶ 36 We conclude that the pathologist's expert testimony quoted above is admissible under CRE 703 as describing his experience. Under CRE 703, experts may describe statements of other persons when they form the basis of their opinions. Leiting v. Mutha, 58 P.3d 1049, 1054 (Colo.App.2002) ; People v. Bornman, 953 P.2d 952, 956 (Colo.App.1997). Such a description is not offered for the truth of the matter asserted; rather, it is offered to explain the basis of the expert opinion and to establish the expert witness's qualifications. Bornman, 953 P.2d at 956.

¶ 37 Here, the pathologist testified that some of his experiences with "overkill" evidence included instances where he "later" learned "who confessed to doing what." He did not testify to the specifics of these confessions or specific statements or assertions; rather, he merely highlighted those instances involving confessions to describe his experience, link multiple injuries in domestic violence cases to overkill, and establish his expert qualifications.

¶ 38 Furthermore, although Ruibal argues that the statement is inadmissible hearsay, the trial court had no basis for determining that the expert's knowledge of later "knowing who confessed to doing what" derived from inadmissible out-of-court statements.

¶ 39 Therefore, we conclude that the trial court did not err when it permitted the "overkill" expert to testify that his opinion was based on his experience in which he later learned "who confessed to doing what."

IV. Photographs of D.P.'s Brain

¶ 40 Ruibal contends that the trial court abused its discretion when it admitted five gruesome color photographs which showed the inside of D.P.'s head. Specifically, he contends that the photographs were relevant to an undisputed fact, and that their probative value was substantially outweighed by the risk of unfair prejudice. We disagree.

A. Standard of Review

¶ 41 It is within the trial court's discretion to decide whether photographs are unnecessarily gruesome or inflammatory, and the court's decision will not be reversed absent a showing of an abuse of discretion. People v. Dunlap, 975 P.2d 723, 746 (Colo.1999).

B. Applicable Law

¶ 42 "Photographs of a homicide victim are admissible at trial when they depict the appearance of the victim, the location and nature of the wounds, or other facts that would be competent for a witness to describe in words." People v. Raglin, 21 P.3d 419, 427 (Colo.App.2000), overruled on other grounds by Fain v. People, 2014 CO 69, 329 P.3d 270 ; Dunlap, 975 P.2d at 726 ("Photographs are admissible to depict graphically anything a witness may describe in words." (quoting People v. Roark, 643 P.2d 756, 762 (Colo.1982) )).

¶ 43 However, under CRE 403, otherwise relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice. Evidence is unfairly prejudicial under CRE 403 if it has an " 'undue tendency to suggest a decision on an improper basis, commonly but not necessarily an emotional one, such as sympathy, hatred, contempt, retribution, or horror.' " People v. Herrera, 2012 COA 13, ¶ 41, 272 P.3d 1158, 1166 (quoting Masters v. People, 58 P.3d 979, 1001 (Colo.2002) ). While the rule "is an important tool to exclude matters of scant or cumulative probative force," CRE 403 favors the admission of evidence. Yusem v. People, 210 P.3d 458, 467 (Colo.2009) (internal quotation marks and alterations omitted).

¶ 44 CRE 403 balancing involves consideration of the available alternative means of proof, whether the fact of consequence for which the evidence offered is disputed, and the importance of the fact of consequence for which the evidence is offered.Id .

C. Analysis

¶ 45 During the testimony of the prosecution's forensic pathologist, the court admitted five color photographs showing the inside of D.P.'s head, to support the conclusion that D.P. died as a result of a closed head injury and internal bleeding.

¶ 46 Ruibal relies on People v. Ellis, 41 Colo.App. 271, 589 P.2d 494 (1978), to argue that the trial court should have excluded the photographs. In Ellis, a division of this court held that the trial court abused its discretion in admitting four photographs of the deceased victim's internal organs, including three photographs of the victim's brain. Id . at 272, 589 P.2d at 495. The division concluded that the photographs should have been excluded because they were probative only of the victim's cause of death, a fact that was undisputed by the defendant. Id. ; see also People v. McClelland, 2015 COA 1, ¶ 50, 350 P.3d 976 (evidence of undisputed facts has marginal probative value).

¶ 47 We agree with Ruibal that, like in Ellis, D.P.'s cause of death was undisputed. However, the photographs of D.P.'s head refute Ruibal's alternative suspect theory. At trial, Ruibal claimed that D.P. was randomly assaulted a day or two before she passed away, and that, after the assault, she was able to walk home. The forensic pathologist testified that D.P.'s brain injuries suggested that she had been knocked unconscious and slowly succumbed to her injuries. She further testified that Ruibal's suggested scenario was highly unlikely. See People v. Harris, 633 P.2d 1095, 1097 (Colo.App.1981) (distinguishing Ellis and admitting gruesome photographs because each was "probative with respect to the trial's pivotal and most hotly contested issue").

¶ 48 Furthermore, the severity of D.P.'s injuries was probative of Ruibal's mental state because the photographs tended to show that Ruibal acted with the intent to cause serious bodily injury, rather than negligently or recklessly. The court instructed the jury on second degree murder, manslaughter, and criminally negligent homicide, and it had to decide whether Ruibal acted negligently, recklessly, or with intent to cause serious bodily injury when he assaulted D.P. See Raglin, 21 P.3d at 428 (seven graphic and inflammatory photographs of deceased victim were probative of defendant's culpable mental state).

¶ 49 Ruibal does not dispute the photographs' probative value; rather, he argues that the photographs were unnecessary because other, less gruesome photographs established the extent of D.P.'s injuries. However, while other admitted photographs revealed the severity of D.P.'s external injuries, the forensic pathologist used the photographs of the inside of D.P.'s head to testify about the location, nature, and extent of her internal brain injuries, which, she explained, eventually caused D.P.'s death. Furthermore, the trial court could have concluded that the external photographs were equally gruesome, and any additional prejudice to Ruibal would have been comparatively minor.

¶ 50 Therefore, we conclude that the trial court did not abuse its discretion when it admitted multiple color photographs which showed the inside of D.P.'s head.

V. Cumulative Error

¶ 51 Ruibal contends that cumulative error deprived him of a fair trial and his right to due process. Specifically, he contends that if two or more errors are found, but no one error is sufficiently harmful to itself require reversal, combined with improper testimony about a defense witness's misdemeanor conviction, then we should consider whether cumulative error requires reversal.

¶ 52 "As a general rule, evidence of a prior misdemeanor is inadmissible for impeachment purposes." People v. Gilbert, 12 P.3d 331, 339-40 (Colo.App.2000). The parties agree that the trial court thus erred when it permitted the prosecution to impeach a defense witness with evidence of a prior misdemeanor conviction. Yet this issue was not raised as a separate contention by Ruibal, only as an adjunct to his cumulative error argument. Consequently, having discerned no other error, we need not address this contention.

VI. Sentencing Error

¶ 53 Finally, Ruibal contends that the trial court abused its discretion during sentencing when it explicitly declined to consider favorable aspects of his character. We disagree.

A. Standard of Review

¶ 54 Trial courts are afforded wide latitude in imposing sentences, and we review sentencing decisions for an abuse of discretion. People v. Martinez, 179 P.3d 23, 25 (Colo.App.2007).

B. Applicable Law

¶ 55 A sentencing court must consider the nature and elements of the offense, the character and rehabilitative potential of the offender, any aggravating or mitigating circumstances, and the public interest in safety and deterrence. People v. Campbell, 58 P.3d 1080, 1086-87 (Colo.App.2002). While a sentencing court may find one aggravating factor more compelling than another, it abuses its discretion when it places "undue emphasis on any one of these factors to the exclusion of the others." Id. at 1087.

C. Analysis

¶ 56 During sentencing, several witnesses provided evidence of favorable aspects of Ruibal's character. The trial court explicitly addressed Ruibal's good character and behavior throughout the proceedings. It recognized that he had been polite and respectful during the police investigation and throughout the criminal proceedings, and that several people supported him and praised his character. It also recognized that he had a strong employment history and no prior felony convictions.

¶ 57 Although the court noted that these good character traits were mitigating factors, it told Ruibal, "I don't sentence people based on their character." Instead, the court told Ruibal, "I'm going to sentence you based on your conduct and what you did to [D.P.]." Later, immediately before imposing a sentence, the court listed the factors it considered in deciding Ruibal's sentence: the gravity of the offense; the promotion of rehabilitation; the interests of fair and consistent treatment; providing fair warning to others; preventing crime; promoting respect for the law; and deterring other potential offenders. Absent from these factors was any mention of Ruibal's good character, a factor the court was required to consider.

¶ 58 We conclude that the trial court did not abuse its sentencing discretion when it made the above statements. The trial court explicitly referenced several of Ruibal's positive character traits. To the extent that the trial court's statement suggested that it was not considering Ruibal's good character, Ruibal had an obligation to ask for clarification from the trial court. See People v. DiGuglielmo, 33 P.3d 1248, 1251 (Colo.App.2001) (if defendant receives advice from counsel or the providency court that differs from information in written plea documents, the defendant must ask court for clarification). Here, Ruibal did not ask for clarification from the court. Such clarification would have been helpful because the court's comments could be interpreted either that it was disregarding evidence of Ruibal's good character, or that it was focusing its sentencing determination on Ruibal's conduct, rather than on his good character.

¶ 59 Therefore, we conclude that the trial court did not abuse its discretion during sentencing.

VII. Conclusion

The judgment and sentence are affirmed.

Booras, J., concurs

Gabriel, J., dissents

JUDGE GABRIEL dissenting.

¶ 60 I agree with much of the majority's analysis in this case. Unlike the majority, however, I believe that the trial court reversibly erred when it admitted a forensic pathologist's "overkill" testimony without making the specific finding of reliability required by People v. Shreck, 22 P.3d 68, 78 (Colo.2001). I would remand this case with directions that the trial court make that required finding. Accordingly, I respectfully dissent.

I. Discussion

¶ 61 Shreck states, in pertinent part, "[A] trial court's CRE 702 determination must be based upon specific findings on the record as to the helpfulness and reliability of the evidence proffered." Id. Here, it is undisputed that the trial court did not make specific findings regarding the reliability of the proffered evidence. The majority concludes, however, that this oversight does not warrant reversal or remand because the trial court "implicitly determined" that the pathologist's expert testimony was based on a reliable scientific principle. (I note that the People did not make such an argument on appeal; indeed, they simply did not address Ruibal's argument regarding the absence of the required finding.) The majority appears to base its determination that there was an implicit finding on the fact that the trial court admitted the evidence over Ruibal's CRE 702 objection. For two reasons, I disagree with that analysis.

¶ 62 First, if we can infer that a trial court implicitly found proffered expert testimony to be reliable based solely on the fact that the court admitted that evidence over objection, then Shreck 's requirement of a specific finding becomes meaningless.

¶ 63 Second, the cases on which the majority relies for its "implicit" finding analysis appear to trace back to People v. Johnson, 74 P.3d 349, 353 (Colo.App.2002). In Johnson, however, the expert opinion at issue involved "battered woman's syndrome" and the "cycle of violence," and the division noted that the reliability of such evidence was "well recognized." Id. The division thus concluded that any error in the trial court's not making specific findings was harmless under the circumstances. Id.

¶ 64 In my view, a conclusion that the error was harmless is materially different from a conclusion that the trial court had implicitly made the required finding. Moreover, I perceive no basis in the record to allow me to conclude that the trial court had made any type of finding on the reliability of the "overkill" evidence at issue. To the contrary, the court found only that this evidence was "relevant and particularly helpful to the jury to put into context the type and nature of the injuries suffered by [the victim]," citing CRE 702 and 403. The court did not mention or allude to the issue of reliability, and neither of the cited evidence rules mentions the word "reliable." And unlike the battered woman's syndrome evidence at issue in Johnson, it is not clear to me that the reliability of the "overkill" evidence at issue here was (or is) "well recognized." See, e.g., State v. Wright, No. 0801010328, 2009 WL 3111047, at *8 (Del.Super.Ct. Sept. 14, 2009) (unpublished opinion) (concluding that there was no basis to admit an expert's opinion that "overkill" indicates personalized anger and sustained aggression or rage because that opinion did not meet the admissibility factors for reliability).

¶ 65 My view that we should not rely on a purported "implicit" finding here finds further support in the fact that the record presents a substantial question as to the reliability of the "overkill" evidence at issue.

¶ 66 The pathologist who presented this evidence testified, as pertinent here:

When I see that type of situation, whether it's a hundred stab wounds to the chest and face or multiple gunshot wounds or multiple blunt trauma injuries, I turn to the detective and I say obviously you're going to need to look into the possibility that this collection of injuries were [sic] caused by an individual who had a real or perceived strong emotional attachment to this victim.
If there are stab wounds in the rectum, that suggests a certain type of emotional attachment to the victim. If the breasts and external genitalia have been cut off, that suggests an emotional attachment to the victim. If there are blows about the head and face that are numerous and extensive, that indicates that the assailant likely had either a perceived or real emotional attachment to the victim.

¶ 67 The pathologist further testified that in the field of forensic pathology, this kind of "focused injury" is called "overkill," and he indicated that his opinions were based on (1) a treatise called Spitz and Fisher's Medicolegal Investigation of Death, see Spitz & Fisher's Medicolegal Investigation of Death: Guidelines for the Application of Pathology to Crime Investigation (Werner U. Spitz & Daniel J. Spitz eds., 4th ed. 2006) (Spitz & Fisher ); and (2) his own experience. It is not clear to me, however, that the pathologist's reliance on either of these sources sufficiently established that his opinions in this case were reliable.

¶ 68 With respect to Spitz & Fisher, the parties appear to agree that the pathologist was relying on the following three-sentence paragraph from that treatise's chapter on "Sharp Force Injury":

Multiple uniformly deep, parallel stab wounds clustered in one area of the body, commonly the chest or back, are usually the result of rapid thrusts and overkill. Such murders commonly suggest a crime of passion with sexual overtones, jealousy, or profound hate. Emotionally driven killings stand out from random killings by their excesses and mutilation.

Id. at 561. It also appears undisputed that entire sections of Spitz & Fisher concern blunt force trauma and strangulation, which were at issue in this case, but those sections did not address the concept of "overkill."

¶ 69 Accordingly, the pathologist extrapolated from Spitz & Fisher in two significant ways. First, he opined that the concept of "overkill" applies in the context of blunt force trauma and strangulation, even though Spitz & Fisher, on which he was relying, did not say that. Second, he averred that "overkill" shows that the assailant likely had either a perceived or real emotional attachment to the victim, but Spitz & Fisher stated only that overkill suggests either a crime of passion with sexual overtones, jealousy, or profound hate or an emotionally-driven killing. Id. The treatise said nothing about any attachment between the assailant and the victim, which was the key part of the pathologist's testimony, given that it was offered to rebut Ruibal's alternate suspect theory and to suggest that Ruibal, who had a relationship with the victim, was her killer.

¶ 70 With respect to the pathologist's experience, to be sure, the pathologist had performed a substantial number of autopsies, many of which involved blunt force trauma and strangulation. That fact alone, however, did not establish either (1) that blunt force trauma and strangulation can support a conclusion of "overkill" or (2) if they can, that "overkill" suggests the assailant's real or perceived emotional attachment to the victim. To make these critical links, the prosecution needed to show that (1) the pathologist had seen blunt force trauma and strangulation victims in his practice; (2) the physical injuries that he had observed supported a conclusion of "overkill"; and (3) in the cases in which the pathologist was involved, the assailants had real or perceived emotional attachments to their victims. Although the evidence established the first of these requirements, it is not clear to me that it established either the second or the third. Indeed, regarding the third requirement, it appears that the pathologist's sole testimony was as follows:

Q In your experience and training you've personally seen these instances where you have these focused injuries and these focused injuries during an autopsy?
....
A Yes, of course it's been an experience. And I also have the experience of later knowing who confessed to doing what.

¶ 71 I am not so sure that this testimony sufficiently showed that the assailants in the cases in which the pathologist was involved had real or perceived emotional attachments to their victims. The pathologist did not testify as to how many cases he had seen, the nature of the injuries observed in those cases, what any assailants had confessed to, or how the pathologist came to know of such confessions.

¶ 72 For these reasons, I question whether the prosecution offered enough evidence to support the pathologist's extrapolations from what Spitz & Fisher had said about "overkill." To the contrary, these extrapolations were arguably based on nothing more than the pathologist's own bare assertions, and a court "may reject expert testimony that is connected to existing data only by a bare assertion resting on the authority of the expert." People v. Ramirez, 155 P.3d 371, 379 (Colo.2007).

¶ 73 Finally, I cannot say (nor does the majority say) that any error in admitting the pathologist's opinions regarding "overkill" was harmless. If that evidence were believed, it would have substantially undermined Ruibal's defense, which was that a stranger beat the victim. Moreover, the evidence was not so overwhelming as to allow me to conclude that the erroneous admission of the pathologist's testimony, if in fact it was erroneous, was harmless.

II. Conclusion

¶ 74 For the foregoing reasons, the record leaves me with serious doubt as to the reliability of the pathologist's "overkill" evidence in this case. In these circumstances, I would not infer a finding of the reliability of that evidence but rather would remand this case to the trial court with directions that the court make, based on the existing record, the specific findings that our supreme court has held are required. See Shreck, 22 P.3d at 78 ; see also United States v. Belyea, 159 Fed.Appx. 525, 530 (4th Cir.2005) (remanding to the district court for a more complete analysis of whether proffered expert testimony would assist the jury and whether it satisfied the applicable standards for assessing the reliability of such testimony); Deputy v. Lehman Bros., Inc., 345 F.3d 494, 508-09, (7th Cir. 2003) (reversing and remanding to allow the district court properly to assess whether handwriting analysis in general or the specific testimony at issue was admissible under Fed.R.Evid. 702 ); cf. People v. Mendoza, 876 P.2d 98, 100 (Colo.App.1994) ("When the trial court does not make all the findings necessary under the Batson analysis, the appropriate remedy is to remand for further proceedings.").

¶ 75 Accordingly, I respectfully dissent.