Volume 197 — Colorado Reports

1. <bold>UNEMPLOYMENT COMPENSATION</bold> — <italic>"Reasonable Assurances" — Ineligible —</italic><italic>Special Unemployment Assistance Benefits — Referee's Ruling — Correct.</italic> In unemployment compensation proceeding, where referee ruled that petitioner, a nonprofessional school employee, was not entitled to compensation based on 1976 amendment to the Emergency Jobs and Unemployment Assistance Act of 1974, which declares nonprofessional school employees ineligible for Special Unemployment Assistance (SUA) benefits between school terms when "reasonable assurances" are given that they will be rehired when the next school term begins, and where referee concluded that petitioner had a "reasonable assurance" that she would be called back to work in the fall,<italic>held</italic>, even though petitioner's employer never appeared at the hearing and the only evidence in the record of intent to rehire consisted of a signed form from petitioner's employer stating an intent to rehire her "depending on continued need," nevertheless, this, as such constituted a "reasonable assurance" that she would be called back to work; accordingly, the referee's ruling was correct. 2. <italic>"Reasonable Assurance" — Amendment — Emergency Jobs and Unemployment</italic><italic>Assistance Act of 1974 — Legislative History.</italic> The legislative history of the 1976 amendment to the Emergency Jobs and Unemployment Assistance Act of 1974 reveals that "reasonable assurance" was intended to mean "a written, verbal, or implied agreement that the employee will perform services in the same capacity during the ensuing academic year or term." 3. <italic>Amendment — Act — Expressed Intent — Work — Rehire — Exclusion —</italic><italic>SUA Coverage.</italic> Under the amendment to the Emergency Jobs and Unemployment Assistance Act of 1974, employee's expressed intent to work for the Denver Public Schools and employer's expressed intent to rehire her constituted a sufficient factual basis for the referee's decision that she was excluded from Special Unemployment Assistance (SUA) coverage. 4. <italic>SUA Program — Distinguished — Non-Professional School Employees —</italic><italic>From Others — Not So — Violation — Rights — Negative.</italic> Assertion by nonprofessional school employee seeking unemployment compensation — that the administration of the SUA program unconstitutionally distinguishes<page_number>Page 24</page_number> nonprofessional school employees from other classes of seasonally employed persons — is without merit, particularly, since she fails to demonstrate that the class to which she belongs (nonprofessional school employees) is protected, or that the Act impinges on a fundamental interest; moreover, since the distinction drawn in the 1976 amendment to the Emergency Jobs and Unemployment Assistance Act of 1974 served a legitimate governmental purpose there was no violation of employee's constitutional rights. 5. <italic>Status Quo — Remain Unchanged — Negative — Benefit in Past — Not</italic><italic>Valid Assertion.</italic> Nonprofessional school employee was not entitled to have her status quo remain unchanged because she benefited from it in the past, and thus, she was not entitled to receive special unemployment assistance during summer months under Emergency Jobs and Unemployment Assistance Act of 1974 simply because she had received such assistance prior to amendment of Act.

1. <bold>WITNESSES</bold> — <italic>Impeachment Possibility — Right to Testify — Does Not</italic><italic>Foreclose — Prior Conviction</italic>. Although the possibility of impeachment by prior conviction may present a defendant with a difficult strategic decision on whether to testify, nevertheless, the constitutional right to testify does not include a right to foreclose impeachment by evidence of a prior conviction. 2. <italic>Prior Felony — Affecting Credibility — May Be Shown — Due Process —</italic><italic>Statute</italic>. Section <cross_reference>13-90-101</cross_reference>, C.R.S. 1973, authorizing a prior felony conviction to be shown for purpose of affecting credibility of witness does not unconstitutionally infringe on defendant's right to due process. 3. <bold>INSTRUCTIONS, CRIMINAL</bold> — <italic>Intoxication — Insufficient Evidence — Refusal</italic><italic>to Give — Proper</italic>. Where the only evidence introduced at trial to indicate possible intoxication of defendant was a single statement by victim on cross-examination, to wit: "It seemed like he had a little bit. Seemed like I smelled a little bit. I mean, when you got a gun pointed at your head, it is pretty hard to smell somebody's breath," and where no mention of intoxication or impaired capacity was made by any witness, <italic>held</italic>, under such circumstances, the trial court properly refused to give the proffered instruction.<page_number>Page 127</page_number>

1. <bold>CRIMINAL EVIDENCE</bold> — <italic>Handwriting Exemplars — Comparison Testimony —</italic><italic>Statute — Determination — Genuine.</italic> Under section <cross_reference>13-25-104</cross_reference>, C.R.S. 1973, before a disputed writing is admissible for comparison purposes, the court must make a preliminary determination that the writing is genuine; and in order for the court to make such a determination, the party offering the evidence must make a prima facie showing of genuineness based on clear and competent evidence. 2. <italic>Writing — Purported Signature — Proof — Genuine — Negative.</italic> In the absence of other direct or strong circumstantial evidence, the mere fact that a writing bears the purported signature of the defendant does not constitute sufficient proof that it is the genuine signature of the defendant. 3. <italic>Parole Reports — Admission — Harmless Error.</italic> Where trial court admitted parole reports as known samples of defendant's handwriting, despite its explicit factual finding that there was no evidence that these samples were genuine examples of defendant's handwriting, <italic>held</italic>, this, as such, was error; however, since the error "does not affect substantial rights" of the accused, it is therefore harmless. 4. <bold>APPEAL AND ERROR</bold> — <italic>Harmless Error — Criminal Trial — Disregarded —</italic><italic>Rules.</italic> Since a perfect trial is an impossibility and minor mistakes will inevitably occur, therefore, under the harmless error rule of Crim. P. 52(a), an error in a criminal trial will be disregarded if there is not a reasonable possibility that the error contributed to defendant's conviction. 5. <bold>CRIMINAL EVIDENCE</bold> — <italic>Handwriting — Erroneously Admitted — Error —</italic><italic>Harmless — Identity — Established.</italic> Although the trial court erroneously admitted samples of defendant's handwriting in the absence of proof of their genuineness, nevertheless, the error was harmless because defendant's identity at the scene of the crime was conclusively established by an abundance of other competent evidence. 6. <bold>WITNESSES</bold> — <italic>Prior Felony Conviction — May Be Shown — Affect —</italic><italic>Credibility — Competency Statute — Constitutional.</italic> Under section<cross_reference>13-90-101</cross_reference>, C.R.S. 1973 (the Colorado Competency Statute), the conviction of any person for any felony may be shown for the purpose of affecting the<page_number>Page 162</page_number> credibility of such witness; and this section has previously been upheld against attacks on its constitutionality. 7. <bold>CRIMINAL LAW</bold> — <italic>Consecutive Sentences — Different Counts — Not Supported</italic><italic>by Identical Evidence — Statute.</italic> Where the different counts of which defendant was convicted were not supported by identical evidence, the trial court did not err in imposing consecutive sentences; section<cross_reference>18-1-408</cross_reference>, C.R.S. 1973, requires the imposition of concurrent sentences only where the counts of which the accused was convicted were supported by<italic>identical evidence.</italic>

1. <bold>STATUTES</bold> — <italic>Constitutional Attacks — Guiding Principles.</italic> The following principles set forth in <italic>People v. Benjamin</italic>, <cross_reference>197 Colo. 188</cross_reference>, <cross_reference>591 P.2d 89</cross_reference> (1979), guide the supreme court's review of attacks on legislation: first, there is a presumption that a statute is constitutional; second, one who assails a statute bears the burden of showing that it is unconstitutional; finally, where the equal protection clause is invoked, there need be only a rational basis in order to uphold the statute. 2. <bold>ASSAULT AND BATTERY</bold> — <italic>Constitutionality — Assail — Adversely Affected</italic><italic>— Statute — Lack of Standing.</italic> No one is entitled to assail the constitutionality of a statute except as he himself is adversely affected; in instant case, the defendant could not have been prosecuted for assault under section <cross_reference>18-3-203</cross_reference>(1)(f), C.R.S. 1973, because he was not lawfully confined or in custody as the terms of that statute require; moreover, because that statute could not have been applied to defendant under the facts of this case, he was not adversely affected by prosecution under the more severe provisions of section <cross_reference>18-3-202</cross_reference>(1)(e); thus, defendant has no standing to challenge the constitutionality of the distinction between the two statutory provisions. 3. <bold>CRIMINAL LAW</bold> — <italic>Penalties — Legislature — Equal Protection.</italic> The legislature is entitled to establish more severe penalties for acts which it believes have greater social impact and more grave consequences; and harsher penalties for crimes committed under different circumstances than those which accompany the commission of other crimes do not violate equal protection guarantees if the classification is rationally based upon the variety of evil proscribed. 4. <bold>ASSAULT AND BATTERY</bold> — <italic>Threat — Bodily Injury — Legislature — Not</italic><italic>Irrational.</italic> With reference to the crime of assault, reviewing court does not find that the legislature was irrational in its determination that a<page_number>Page 192</page_number> threat of serious bodily injury is more grave than an act which results in bodily injury, however slight, as those terms are defined in section<cross_reference>18-1-901</cross_reference>, C.R.S. 1973.

1. <bold>LABOR RELATIONS</bold> — <italic>Vacation Pay — Issue of Fact — Decision — Appeal —</italic><italic>Will Not Be Disturbed — Absent Error.</italic> Where trial court awarded employee a judgment for vacation pay and employer now argues that the amount is excessive because the court included $150 for the first year of employment despite the fact that such benefits did not apply to that year, <italic>held</italic>, as such, this was an issue of fact, and decision of the district court, as trier of fact, will not be disturbed on appeal absent a clearly erroneous ruling. 2. <italic>Vacation Pay — "Wages or Compensation" — Statutory Penalty.</italic> Where vacation pay was owed to employee as compensation for her work, trial court acted properly in including that amount under "wages or compensation" to which the statutory penalty attached. 3. <italic>Vacation Pay — "Deferred Compensation" — Statute — Negative — Lack</italic><italic>of Express Statutory Language.</italic> Employer's argument — that even if vacation pay is compensation, that it is "deferred compensation" under section<cross_reference>8-4-105</cross_reference>(3), C.R.S. 1973 — is untenable; had the legislature intended to<page_number>Page 276</page_number> include vacation pay with the dissimilar benefits of pension plans and profit-sharing plans, it could have done so by express statutory language; thus, absent such language reviewing court holds that "deferred compensation programs" do not encompass vacation pay. 4. <italic>Vacation Pay — Compensation — Subject to Penalty — Statute — Amount</italic><italic>Due — Proof.</italic> Employer's contention — that, if vacation pay is compensation subject to the penalty of <cross_reference>8-4-104</cross_reference>(3), C.R.S. 1973, the amount in dispute for the purpose of determining that penalty is not the entire $900 — is without merit, since the penalty provisions of the statute apply to amounts which are due to the employee and are withheld by the employer not in good faith; employer did not pay employee the undisputed $750 and confine his retention to $150; the penalty therefore applies to the full amount proven to be due which has not been paid, in this case $900. 5. <bold>TRIAL</bold> — <italic>Testimony or Exhibits — Basis — Decision.</italic> The trier of fact can look to either testimony or exhibits which have been admitted into evidence for the facts upon which to base its decision. 6. <bold>APPEAL AND ERROR</bold> — <italic>Weight — Evidence Not Admitted — Not Presumed —</italic><italic>Issue — Tried to Court.</italic> Where the issue is tried to the court, it will not be presumed that weight was accorded to evidence which was not admitted. 7. <italic>References — Order and Judgment — Exhibits — Erroneous — Facts —</italic><italic>Other Forms — Error — Harmless.</italic> Although references in order and judgment of court to exhibits — which were not admitted into evidence at trial pertaining to employee's claims against employer for past compensation and vacation pay due her at time her employment relationship terminated — were erroneous, nevertheless, because the facts were presented in other forms of evidence, the error is deemed harmless. 8. <bold>JUDGMENT</bold> — <italic>Employee — Employer — Error — Amount — Reduced.</italic> In action by employee against employer for past compensation, statutory penalties, and attorney's fees, where record reflects a two dollar error and the concomitant fifty percent penalty applied thereto, the amount of the judgment should be reduced by three dollars. 9. <bold>LABOR RELATIONS</bold> — <italic>Attorney Fees — Statute — Not Unilateral — Equal</italic><italic>Protection.</italic> Section <cross_reference>8-4-114</cross_reference>, C.R.S. 1973, which authorizes attorney fees to winning party in suits by employees against employers for recovery or collection of wages and penalties due, does not violate employer's right to equal protection since the award is not unilateral and plainly provides for attorney's fees for the winning party, be it employee or employer. 10. <bold>COSTS</bold> — <italic>Attorney's Fees — Reasonableness — Question of Fact — Review.</italic> Although an award of attorney's fees must be reasonable, nevertheless, the determination of reasonableness is a question of fact for the trial court and will not be disturbed on review unless it is patently erroneous and unsupported by the evidence. 11. <bold>ATTORNEY AND CLIENT</bold> — <italic>Fees — Award — Factors Considered — No Factor</italic><italic>Alone Conclusive.</italic> In awarding attorney fees, the trial court may consider, among other factors, the amount in controversy, the length of time required<page_number>Page 277</page_number> to represent the client effectively, the complexity of the case, the value of the legal services to the client, and the usage in the legal community concerning fees in similar cases, however, no one of these factors is conclusive. 12. <bold>LABOR RELATIONS</bold> — <italic>Attorney Fees — Not Excessive.</italic> Amount of attorney fees awarded to former employee, which was more than fifty percent of the judgment on her claims against employer for past compensation, vacation pay and statutory penalties due her, was not excessive. 13. <italic>Attorney Fees — Statute — Includes — Costs of Appeal — Incurred by</italic><italic>Employee — Remand.</italic> Since there is authority for the principle that the scope of section <cross_reference>8-4-114</cross_reference>, C.R.S. 1973, includes reasonable attorney's fees for the costs of appeal, the cause is remanded to the district court for the specific purpose of considering the award of attorney's fees incurred by employee on instant appeal.

1. <bold>CONSTITUTIONAL LAW</bold> — <italic>"Equal Protection" — Problem — Arises — Different</italic><italic>Penalties — Same Conduct.</italic> An "equal protection" problem arises only where different statutes prescribe different penalties for the same conduct. 2. <bold>ANIMALS</bold> — <italic>Theft — Statute — Distinguishable — Theft of Other Articles —</italic><italic>Greater Penalty — Proper — Equal Protection.</italic> The theft of animals statute, section <cross_reference>35-43-128</cross_reference>, C.R.S. 1973, relates specifically to theft of <italic>animals</italic>, conduct which is distinguishable from theft of other articles, and this distinction has been made by the legislature, which obviously has concluded that theft of animals in Colorado is a crime of greater consequence to society than a general theft and that it requires a greater penalty; thus, defendant's argument — that he has been deprived of equal protection of the laws by virtue of punishing him as a felon when under the general theft statute he would only have been guilty of a misdemeanor — is without merit. 3. <bold>THEFT</bold> — <italic>General — Theft of Animals — Distinction — Equal Protection.</italic> Reviewing court is of the opinion that the distinction made by the legislature between a general theft and theft of animals is neither arbitrary nor unreasonable; rather, it displays a legitimate legislative judgment; thus, there is no violation of equal protection in instant case. 4. <bold>CRIMINAL LAW</bold> — <italic>Legislature — Definitions of Crimes — No Definition —</italic><italic>Common Law Elements — Proof.</italic> The legislature provides the definitions of the crimes it creates; thus, where no definition of the named offense is given, the common law elements of the offense must be proved. 5. <bold>THEFT</bold> — <italic>Calf — "Theft of Animals" Statute — Definition — Jury — Proper</italic><italic>Instruction — Due Process.</italic> In prosecution for theft of a calf, where the legislature has specifically defined the crime of "theft of animals," and the jury was properly instructed that a culpable mental state was one of its essential elements, one which must be proved beyond a reasonable doubt,<page_number>Page 285</page_number><italic>held</italic>, as such, the statute, section <cross_reference>35-43-128</cross_reference>, C.R.S. 1973, does not violate the due process clause of the constitution. 6. <bold>STATUTES</bold> — <italic>Title — No Definitional Significance.</italic> Title of penal statute is only a title and has no definitional significance. 7. <bold>SEARCHES AND SEIZURES</bold> — <italic>Warrantless — Exigent Circumstances — Calf —</italic><italic>Properly Admitted.</italic> Where record reflects competent evidence to uphold trial court's conclusion that exigent circumstances existed to allow a warrantless search of the premises, <italic>held</italic>, under such circumstances, evidence of the fruits of that search — the calf — was properly admitted; accordingly, denial of defendant's motion to suppress is affirmed.

1. <bold>BILLS AND NOTES</bold> — <italic>Suit — Law Firm — Promissory Note — Legal —</italic><italic>Itemization Unnecessary — Review — Affirmed.</italic> In action on promissory note by law firm against clients, where trial court concluded that the note was enforceable and "legal in every respect," as such, there was an implicit finding by the court that itemization of charges was not a condition precedent to the enforceability of the note which finding was supported by evidence. 2. <bold>APPEAL AND ERROR</bold> — <italic>Appellate Court — Evidence — Weigh — Negative.</italic> An appellate court will neither weigh the evidence nor appraise the credibility of witnesses. 3. <bold>BILLS AND NOTES</bold> — <italic>Law Firm — Promise — Forego Collection —</italic><italic>Consideration — Enforceable — Lack of Duress.</italic> Promise by law firm to forego collection for one year provided consideration for client's agreement to pay amount of promissory note; thus, note was enforceable by law firm in view of absence of any evidence of duress or lack of arm's length bargaining. 4. <bold>ATTORNEY AND CLIENT</bold> — <italic>Itemization — Not Compelled by Law — Legal Fees —</italic><italic>Value — Independent Determination — Note.</italic> A requirement of itemization — by an attorney who seeks to enforce a contract for legal fees — is clearly not compelled by the law where, as in instant case, the fee arrangement was not made during the course of the attorney-client relationship and where, as in instant case, the parties have made an independent and final determination of the value of the services rendered through the execution of a promissory note.

1. <bold>GRAND JURY</bold> — <italic>Function of District Court — Review of Record — Probable</italic><italic>Cause — Preliminary Hearing.</italic> The function of the district court, in conducting a review of the grand jury record to determine whether the grand jury finding of probable cause was adequately supported, is much like the role of the court at a preliminary hearing in that the court must draw all inferences in favor of the prosecution and, when there is a conflict in the testimony, it must determine that a question of fact exists for resolution at trial. 2. <italic>Defendant — Police Officer — Fired Shots — Evidence — Sufficient —</italic><italic>Finding — Probable Cause — Charge of Assault.</italic> With reference to grand jury record concerning incident wherein defendant, a police officer, fired shots into suspect's car, evidence was sufficient to support grand jury finding that there was probable cause to charge defendant with second-degree assault. 3. <italic>Record — Disputes of Fact — Trial — Not at Time of Review — Probable</italic><italic>Cause.</italic> Resolution of disputes of fact should be made at trial and not by the district court when reviewing the grand jury record to determine whether the grand jury's finding of probable cause was adequately supported.