Itin v. Ungar

• Citation: 17 P.3d 129
• Decision Date: 06 November 2000
• Docket Number: No. 99SC35.,99SC35.
• Parties: Thomas W. ITIN, Petitioner/Cross-Respondent, v. Bertrand T. UNGAR, P.C.; and Bertrand T. Ungar, Respondents/Cross-Petitioners.
• Court: Colorado Supreme Court

17 P.3d 129

Thomas W. ITIN, Petitioner/Cross-Respondent, v. Bertrand T. UNGAR, P.C.; and Bertrand T. Ungar, Respondents/Cross-Petitioners.

No. 99SC35.

Supreme Court of Colorado, En Banc.

November 6, 2000.

As Modified on Denial of Rehearing November 28, 2000.

Myer, Swanson, Adams & Wolf, P.C., Thomas J. Wolf, John M. Anderson, Denver, CO, Attorneys for Petitioner.

Gibson, Dunn & Crutcher L.L.P., Gregory J. Kerwin, Jessica Lee, Birge & Mayes, P.C., Thomas D. Birge, Denver, CO, Attorneys for Respondents.

Justice BENDER delivered the Opinion of the Court.

I. INTRODUCTION

In this appeal, we hold that a victim seeking civil recovery of treble damages, costs, and fees under the Rights in Stolen Property statute need not prove that the defendant suffered a prior conviction for the crime of theft, robbery, or burglary. A jury in this case found that the defendant, Bertrand T. Ungar, committed acts that constitute the crime of theft when he knowingly exercised control over the funds of plaintiff Thomas W. Itin without authorization and with the specific intent to permanently deprive him of his property. The trial court awarded treble damages, attorney fees, and costs to Itin under the Rights in Stolen Property statute. On appeal, the court of appeals in Itin v. Ungar, 978 P.2d 142 (Colo.App.1998), reversed, holding that before Itin may recover under this statute Ungar must first be criminally convicted of theft, robbery, or burglary. We disagree and reverse on this issue.

Secondarily, we also address what information the proponent of evidence must convey to the court in order to preserve a record for appeal when the trial court excludes the proponent's evidence. Here, the trial court precluded impeachment of Itin by Ungar concerning an earlier Securities Exchange Commission (SEC) sanction because it was not relevant. The court of appeals held that because Ungar failed to cite the pertinent rule of evidence, CRE 608(b), as a basis for admissibility, Ungar is now precluded from arguing this issue on appeal. Under our rules of evidence, the proponent of evidence excluded by the trial court need not state a particular rule supporting admission to preserve an evidentiary issue for appeal provided the "substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked." CRE 103(a)(2). Here, Ungar both adequately stated, and indicated from the context of the questions asked, that his purpose for questioning Itin about his past SEC sanction was to impeach Itin's credibility. Thus Ungar established an adequate record to raise this evidentiary issue on appeal. Turning to the merits of Ungar's objection, we hold the trial court's exclusion of Ungar's impeachment inquiry was not an abuse of discretion. We therefore affirm the court of appeals on this issue, but we employ different grounds.

Hence, we reverse in part and affirm in part and remand this case to the court of appeals to address any remaining issues before that court.

II. FACTS AND PROCEDURAL HISTORY

Itin transferred funds by wire to the trust account of Ungar, who was acting as his escrow agent for the purpose of purchasing stock. Ungar in turn disbursed Itin's funds from the trust account to other companies. Itin claimed that these disbursements were not authorized and that Ungar's actions in transferring the funds permanently deprived Itin of the value of his money. Itin brought suit alleging that in taking his money Ungar committed the crime of theft, and thus sought treble damages, attorney fees, and costs under the Rights in Stolen Property statute, § 18-4-405, 6 C.R.S. (2000).¹ We set forth below only those facts necessary to frame the two issues on this appeal.

Consistent with Itin's claim that Ungar stole his money in violation of the Rights in Stolen Property statute, which Itin called "conversion" in his complaint, the trial court defined conversion² in a jury instruction using the elements of criminal theft, which are in pertinent part: "A person commits theft when he knowingly obtains or exercises control over anything of value of another without authorization ... and: (a) Intends to deprive the other person permanently of the use or benefit of the thing of value." § 18-4-401(1). Both parties consented to this definition and to placing the label "conversion" on the jury instruction that defined the crime of theft.

The trial court also instructed the jury to apply the civil standard of the burden of proof by requiring Itin to prove his case by a preponderance of the evidence. Ungar neither requested an instruction concerning the criminal burden of proof beyond a reasonable doubt nor objected when the court gave the civil burden of proof instruction.

The jury found Ungar liable to Itin. At a later hearing, the trial court awarded treble damages, attorney fees, and costs to Itin despite Ungar's objections that the Rights in Stolen Property statute did not apply.

Unrelated to the trebling of damages issues, during cross-examination Ungar questioned Itin about his knowledge of private securities actions and specific rules and exemptions of the SEC regarding the sale and registration of restricted securities. On recross-examination, Ungar sought to question Itin about his SEC sanction that occurred approximately thirty years earlier. Ungar's counsel advised the court that there existed a finding and conclusion by the SEC that Itin had violated the registration provisions of the federal securities laws.³ The trial judge stated that she was familiar with Itin's SEC sanction, recalling discussions about this sanction from an earlier mistrial. The defense stated that the reason for this line of questioning was to show that Itin had previously violated SEC provisions under "the exact same statute and regulations that [he talked] about and project[ed] his expertise in" when questioned on cross-examination. Ungar's counsel did not specifically cite CRE 608(b) to support questioning of Itin about this specific instance of misconduct. CRE 608(b) provides that specific instances of a witness's misconduct may be inquired into on cross-examination to attack the witness's credibility for truthfulness if the trial court, in its discretion, determines that the misconduct is probative.

The trial court prohibited questioning about the SEC sanction for four reasons: first, the past sanction involved prior unrelated transactions; second, it was too remote; third, to the extent Itin testified about SEC regulations, he did not open the door⁴ to this type of credibility attack by his earlier testimony; and fourth, since Itin had not held himself out as an expert in securities law, the stated purpose of undermining Itin's expertise was not a valid theory for admissibility. Thus, the court excluded the evidence as not relevant.

On appeal, the court of appeals held the Rights in Stolen Property statute inapplicable because Ungar had not been convicted of the crime of theft. The court reasoned that because the statute provides recovery only for property taken by the crimes of "theft, robbery, or burglary," a plaintiff seeking treble damages must prove that the defendant was criminally convicted of one of these crimes. That court considered the primarily punitive purpose of this statute and its location within the Criminal Code to hold that "for a plaintiff to recover treble damages, fees, and costs, under § 18-4-405, the original taker must, at a minimum, have been convicted of theft, burglary, or robbery." See Itin, 978 P.2d at 144.

Unrelated to this issue, the court of appeals addressed Ungar's claim that the trial court erred by preventing him from eliciting Itin's prior SEC sanction on recross-examination. The court did not consider this argument, holding that because the "[d]efendant[] did not raise CRE 608(b) in the trial court as a basis for the admission of the evidence ... [he] may not assert that rule as a basis of error here." Id. at 145.

We granted Itin's petition for certiorari to determine whether the court of appeals erred by denying recovery under the Rights in Stolen Property statute. We also granted Ungar's cross-petition for certiorari to determine if the court of appeals erred in holding that his failure to cite CRE 608(b) at trial prohibited him from arguing on appeal that the trial court abused its discretion by excluding evidence arguably admissible under Rule 608(b).⁵ We reverse on the first issue and affirm on the second issue, but we do so based upon different grounds.

III. TREBLE DAMAGES UNDER THE RIGHTS IN STOLEN PROPERTY STATUTE

Itin argues that the court of appeals erred by requiring proof of Ungar's prior criminal conviction before he could recover treble damages against the wrongdoer. We agree.

A.

We begin our analysis by examining the wording of the statute to give effect to legislative intent. See Farmers Ins. Exch. v. Bill Boom, Inc., 961 P.2d 465, 469 (Colo. 1998). "Words and phrases used in statutes are to be interpreted according to their generally accepted meaning." People v. Hickman, 988 P.2d 628, 634 (Colo.1999).

The Rights in Stolen Property statute provides that the owner of property taken by theft, robbery or burglary may sue the taker and recover treble damages, fees, and costs:

All property obtained by theft, robbery, or burglary shall be restored to the owner... [who] may maintain an action ... against the taker thereof.... In any such action, the owner may recover two hundred dollars or three times the amount of the actual damages sustained by him, whichever is greater, and may also recover costs of the action and reasonable attorney fees.

§ 18-4-405.

The words "convict," "conviction," or "convicted" are not found in this statute. We find this omission significant. The General Assembly could have included words providing that recovery of civil damages is predicated upon proof of a criminal conviction. Failure to do so reflects a legislative intent...