text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Henry Michael TRUJILLO, Defendant-Appellant.
    No. 01CA0547.
    Colorado Court of Appeals, Div. V.
    July 5, 2002.
    Rehearing Denied Aug. 15, 2002.
    Certiorari Granted Jan. 21, 2003.

      Ken Salazar, Attorney General, Katherine A. Hansen, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Cynthia Camp, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

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

   Opinion by

Judge MARQUEZ.

Defendant, Henry Michael Trujillo, appeals the judgment of conviction entered on jury verdicts finding him guilty of four counts of first degree assault. He also appeals his sentence of fifty-two years imprisonment in the Colorado Department of Corrections. We reverse the judgment, vacate the sentence, and remand for a new trial.

Evidence was presented that several police officers went to a residence the morning of August 7, 1998, to execute a warrant for defendant’s arrest. Although the officers identified themselves as police officers and discussed the warrant with defendant, defendant did not come to.the door. When an officer kicked open the back door, defendant fired four to six shots from the basement. Defendant eventually surrendered.

Defendant’s first trial ended in mistrial. After a second trial, the jury found defendant guilty of the lesser nonineluded offenses of resisting arrest and reckless endangerment, but did not reach a verdict on the four first degree assault charges. After a third trial, the jury found defendant guilty of four counts of first degree assault, prohibited use of a weapon, and obstructing a police officer. The jury also found that defendant used a semiautomatic weapon during the commission of each assault.

At sentencing, the People moved to dismiss the counts of obstructing a police officer, reckless endangerment, resisting arrest, and prohibited use of a weapon, and the trial court sentenced defendant to a total of fifty-two years in the Department of Corrections based on the four first degree assault convictions.

I. Jury Instruction

Defendant contends that, because his requested instructions encompassed his theory of the case and the evidence supported giving them, the trial court violated his rights to due process by refusing to instruct the jury on the lesser nonincluded offenses of resisting arrest and reckless endangerment. We agree.

Tin instruction that permits the jury to find a defendant not guilty of the principal charge and guilty of a lesser charge should be given when warranted by the evidence. Without such an instruction, the jury may be aware of the commission of a crime, not the principal charge, and yet convict the defendant of the greater crime. People v. Rivera, 186 Colo. 24, 525 P.2d 431 (1974), overruled in part by People v. Lowe, 660 P.2d 1261 (Colo.1983).

Further, an instruction embodying a defendant’s theory of the case must be given by the trial court if the record contains any evidence to support the theory. People v. Nunez, 841 P.2d 261 (Colo.1992); People v. Fuller, 781 P.2d 647 (Colo.1989).

Here, at the conclusion of defendant’s second trial, the trial court entered judgment against defendant on the charges of reckless endangerment and resisting arrest but withheld sentencing on those counts.

At the conclusion of his third trial on the first degree assault charges, defendant again requested that the trial court instruct the jury on the lesser nonincluded offenses of resisting arrest and reckless endangerment. The trial court refused the requested instructions, reasoning that to do so would constitute a double jeopardy violation because defendant had already been convicted of those offenses in his second trial. We conclude that the instructions were not barred by double jeopardy concerns.

The Double Jeopardy Clauses of the United States and Colorado Constitutions protect an accused from a second prosecution for the same offense after conviction. People v. Chavez, 32 P.3d 613 (Colo.App.2001).

Under those clauses, the state may not punish a person twice for the same offense. This protection specifically includes guarantees that the accused will not be subject to multiple punishments imposed in the same criminal prosecution for statutory offenses proscribing the same conduct. Patton v. People, 35 P.3d 124 (Colo.2001).

However, a defendant may waive constitutionally protected rights. A defendant’s motion for a mistrial is generally a waiver of protection from retrial under the Double Jeopardy Clause. See People v. Baca, 193 Colo. 9, 562 P.2d 411 (1977); People v. Ball, 821 P.2d 905 (Colo.App.1991).

Here, defendant sought instructions on the lesser nonincluded offenses, and it is undisputed that sufficient evidence supported them. Further, if defendant were convicted of the lesser nonincluded offenses, the court could avoid multiple convictions and multiple punishments simply by allowing only one conviction for each of these offenses.

Finally, as noted below, the jury here submitted a question to the trial court indicating that it was unable to reach a unanimous decision on the charges of assault in the first degree and asked what its course of action should be. Thus, the court’s refusal to instruct the jury on the lesser nonincluded offenses of resisting arrest and reckless endangerment limited the jury’s options. As defendant asserts, he was in a less advantageous position than he was during the second trial.

II. Issues on Remand

Because certain matters may arise on remand, we address them here.

A. Discovery Costs

Defendant contends that the trial court erred by ordering the public defender to deposit $2,145.76 as a prerequisite to requiring production of properly subpoenaed internal affairs records for in camera review and by not performing an in camera review as requested by defendant. We conclude that on remand the court should reconsider its position.

A defendant who is charged with assaulting a police officer is entitled to disclosure of the fact that complaints charging excessive use of force have been filed against that officer. People v. Walker, 666 P.2d 113 (Colo.1983).

However, the trial court must first conduct an in camera review of the materials to balance the defendant’s interest in disclosure of the materials with the government’s interest in confidentiality and to determine whether the information in the materials is discoverable. People v. Walker, supra; Martinelli v. District Court, 199 Colo. 163, 612 P.2d 1083 (1980).

Here, on defendant’s motion, the trial court ordered the police department to produce for the court’s examination, inspection, and photocopying, the personnel, internal investigation, and inspection bureau files of the police officers charged as victims in defendant’s case.

The city moved to quash or modify the subpoena and requested a denial or regulation of disclosure, alleging that the estimated cost of searching for and photocopying the requested records back to January 1995 would be approximately $2,145.76. The city asserted that it was necessary to provide the court with copies of the requested materials in order that the original records remain available for police department internal use and to avoid the risk that the records might be lost or misplaced.

After reviewing a confidential internal affairs index provided by the city, the trial court issued, an order stating that it should review in camera the files designated in the index beginning January 1, 1995, to determine what records might be relevant to the proceedings and should be disclosed to defendant. However, the order also stated that pursuant to Crim. P. 16(V)(c), defendant should be required to pay $2,145.76 for the production of the files. The court found that “[defendant is indigent but is represented by the Public Defender who has a budget for discovery” and that the cost of discovery was reasonable.

The public defender did not deposit the money with the trial court, and the court did not conduct an in camera review. Defendant subsequently petitioned the supreme court for relief pursuant to C.A.R. 21, but the petition was denied.

1. Crim. P. 16(V)(c)

Crim. P. 16(V)(c) states in pertinent part that “[t]he cost of duplicating any material discoverable under this rule shall be borne by the party receiving the material, based on the actual cost of copying the same to the party furnishing the material.” Defendant does not assert that he was unable to comply with the cost of copying the records. Rather, he asserts that Crim. P. 16(V)(c) applies only to materials that are discoverable and actually received by the requesting party. The People acknowledge that arguably, this provision covers only the cost of copying documents that would be turned over to the defense.

Nevertheless, the People point to the open records laws, which regulate the inspection and copying of governmental records by “any person,” without limitation as to the reason or reasons for which the inspection is undertaken. Martinelli v. District Court, supra. Section 24-72-306(1), C.R.S. 2001, provides that “[cjriminal justice agencies may assess reasonable fees, not to exceed actual costs, including but not limited to personnel and equipment, for the search, retrieval, and copying of criminal justice records and may waive fees at their discretion.” However, in our view, the use of “may” in this statute indicates that the assessment is discretionary.

2. Crim. P. 17(c)

On remand the trial court should make specific findings regarding whether defendant’s subpoena was unreasonable or oppressive and whether the city’s proffered concerns as to use and possible loss were justified. The court should consider whether adequate safeguards could he provided for an initial in camera review of the original documents and then limit any payment required to actual costs. In doing so, the court must balance the government’s interests against defendant’s interests in disclosure. See Martinelli v. District Court, supra.

B. Audio Tape

Defendant next contends that the trial court erred by not finding that a due process violation occurred and by not imposing more severe sanctions after it found that the state violated Crim. P. 16 by destroying an audio tape of the negotiations between defendant and the police. We disagree.

To demonstrate that the state’s failure to preserve potentially exculpatory evidence violates the Due Process Clause of the United States or Colorado Constitution, a defendant must establish that: (1) the evidence was suppressed or destroyed by the prosecution; (2) the evidence possessed an exculpatory value that was apparent before it was destroyed; and (3) the defendant was unable to obtain comparable evidence by other reasonably available means. People v. Enriquez, 763 P.2d 1033 (Colo.1988).

Prior to trial, defendant sought an order directing the prosecution to preserve and provide the defense with the dispatch tapes made by law enforcement and other governmental agencies during the incident. Defendant testified at an evidentiary hearing that during his conversation with the hostage negotiators, he asked, “[H]ow come [the officers] kicked my door in without announcing themselves as police officers?” and stated, “I told [the officers] I didn’t have no intention of shooting at any time. I didn’t know who was breaking my door in.” One of the negotiators testified that during the course of negotiations defendant did not make any exculpatory statements. Another negotiator testified that defendant asked about the warrant.

The trial court found, with record support, a violation of Crim. P. 16, but no due process violation. Even if the prosecution lost the tape and defendant was unable to obtain comparable evidence by other reasonably available means, as the trial court pointed out, the only evidence of exculpatory value was defendant’s testimony at the hearing, and the court stated that it was “not convinced that the defendant made the statements he testified to.”

Moreover, as a sanction for the discovery violation, the trial court submitted the following instruction to the jury:

You are instructed that [defendant] has testified under oath at a prior hearing that he made the following statement to [an officer] during the crisis negotiations:
“Why did the police officers kick my door in without announcing themselves as police officers? I told them I didn’t have no intention of shooting at any time. I didn’t know who was breaking my door in.”
As with any other witness’ testimony, you may believe all of the statement, part of it, or none of it.

In addition, the court stated that it would permit defendant to elicit testimony that a tape of the negotiations took place and was subsequently lost.

These sanctions allowed defendant, without testifying, to present to the jury the exculpatory evidence. Accordingly, we perceive no abuse of discretion. See People v. Loggins, 981 P.2d 630 (Colo.App.1998).

C. Jury Question

Although the issue is unlikely to occur on remand, we agree with defendant that the trial court violated his right to counsel under the United States and Colorado Constitutions by failing to inform counsel that the jury had a question and by answering the question without consulting counsel. If a similar circumstance arises on remand, the trial court should follow the mandates of Key v. People, 865 P.2d 822 (Colo.1994), and Leonardo v. People, 728 P.2d 1252 (Colo. 1986). See People v. Grace, 55 P.3d 165 (2001).

In view of our disposition, we do not address defendant’s contention that the trial court erred in finding that it was required to impose two consecutive sentences.

The judgment is reversed, the sentence is vacated, and the case is remanded for a new trial.

ROY and STERNBERG , JJ., concur.


source: Caselaw Access Project

author: Judge NIETO.

license: Public Domain

text:
    John L. CRUM, Jr., Plaintiff-Appellee, v. APRIL CORPORATION, Defendant-Appellant.
    No. 00CA2154.
    Colorado Court of Appeals, Div. V.
    Aug. 1, 2002.
    Certiorari Denied Jan. 27, 2002.

      Davis & Ceriani, P.C., Gary J. Ceriani, Denver, Colorado, for Plaintiff-Appellee.
    Burg Simpson Eldredge Hersh & Jardine, P.C., Michael S. Burg, Diane Vaksdal Smith, Englewood, Colorado; Moscone, Emblidge & Quadra, LLP, Robert Sanford, San Francisco, California, for Defendant-Appellant.
   Opinion by

Judge NIETO.

Defendant, April Corporation, appeals the judgment in favor of plaintiff, John L. Crum, Jr., entered after a jury trial. We affirm.

In June 1997, the parties entered into a contract in the form of a short letter agreement. The agreement stated that plaintiff would solicit potential lenders to assist defendant in obtaining “a multi-year credit facility, including ... a revolving credit/term loan agreement.” In exchange, defendant agreed to pay plaintiff a $7,500 retainer, his reasonable expenses, and “in the event of a new comprehensive credit facility that is acceptable to [defendant], a fee of one per cent (1.00%) of the aggregate amount of the financing.”

As contemplated by the agreement, the parties jointly prepared a memorandum outlining the general financing terms sought and information about defendant. The memorandum was to be used to advise lenders of defendant’s goals and general criteria for entering into a financing agreement.

After being contacted by plaintiff, a bank provided a proposal for a credit facility. However, negotiations with the bank were unsuccessful, and defendant did not obtain a credit facility before the agreement expired in March 1998.

In July 1998, plaintiff filed a complaint alleging that defendant breached the contract by refusing to pay him one percent of the financing proposed by the bank. A jury found in favor of plaintiff and awarded $200,000 in damages. This appeal followed.

Defendant contends that the trial court erred in instructing the jury that plaintiff was only required to prove that defendant failed to act as a reasonable person would have in rejecting the financing proposal. Defendant argues that the contract provided that plaintiff was only entitled to a one percent fee if the financing proposal was subjectively acceptable to defendant. We disagree.

“The purpose of jury instructions is to provide the jury with the applicable law so that its attention will be directed to the specific issues that are to be determined. As such, instructions should embrace only the correct statements of law by which the evidence is to be examined and applied.” Yampa Valley Electric Ass’n v. Telecky, 862 P.2d 252, 256 (Colo.1993) (citation omitted).

Contract interpretation is a question of law and is reviewed de novo. The goal of contract interpretation is to give effect to the intent of the parties, as determined primarily from the language of the instrument itself. Ad Two, Inc. v. City & County of Denver, 9 P.3d 373 (Colo.2000).

When a contract is to be completed to the satisfaction of a party, the satisfaction provision implicates either a subjective or an objective standard for performance. If the contract’s subject matter involves questions of “commercial value, operative or mechanical fitness, or quality,” an objective “reasonable person” standard generally applies. Where the contract involves “matters of fancy, taste, sensibility and judgment,” a subjective standard generally applies. In cases implicating the subjective standard, the party reserving its rights is the sole judge of its own satisfaction, without regard to the reasonableness of its decision and is limited only by the duty of good faith. Mike Naughton Ford, Inc. v. Ford Motor Co., 862 F.Supp. 264, 269 (D.Colo.1994).

Restatement (Second) of Contracts § 228 (1981) states a preference for an objective standard:

When it is a condition of an obligor’s duty that he be satisfied with respect to the obligee’s performance or with respect to something else, and it is practicable to determine whether a reasonable person in the position of the obligor would be satisfied, an interpretation is preferred under which the condition occurs if such a reasonable person in the position of the obli-gor would be satisfied.

Comment B to § 228 states that where the agreement does not make clear that only honest satisfaction is required, “it will not usually be supposed that the obligee has assumed the risk of the obligor’s unreasonable, even if honest, dissatisfaction.” The comment further provides that where the language used in the contract does not make it clear that a subjective standard applies, an objective test of reasonable satisfaction will be applied to the extent that it is practicable. Practicable means “reasonably capable of being accomplished; feasible.” Black’s Law Dictionary 1191 (7th ed.1999).

We have found no appellate decision in Colorado that has applied § 228, but Colorado eases discussing satisfaction clauses have expressed holdings that are consistent with it. Interpreting the term “operation satisfactorily” in a commercial sales contract, the supreme court affirmed the application of a standard of reasonableness, stating: “That which in reason you ought to be satisfied with, the law will say you are satisfied with.” McKendrie v. Noel, 146 Colo. 440, 444, 362 P.2d 880, 882 (1961)(quoting McCartney v. Badovinac, 62 Colo. 76, 79, 160 P. 190, 191 (1916)). A division of this court held, “With some limited exceptions, when a contract is to be completed to the satisfaction of another party, the court determines, as a matter of law, what constitutes satisfaction, applying a reasonable person test.” Caldwell v. Armstrong, 642 P.2d 47, 49 (Colo.App.1981).

These cases are consistent with § 228 because in neither case was there explicit language in the contract providing for a subjective standard of satisfaction, and in each ease it was practicable to apply a standard of reasonableness.

Where a contract requires that one party’s performance under a contract be to the satisfaction of another party, the court must determine as a matter of law the standard by which that performance is to be judged. Caldwell v. Armstrong, sivpra; see also Misano Di Navigazione, SpA v. United States, 968 F.2d 273 (2d Cir.1992); Hutton v. Monograms Plus, Inc., 78 Ohio App.3d 176, 604 N.E.2d 200 (1992). In the absence of explicit language in the contract providing for a subjective standard or evidence of impracticability of application, an objective reasonable person standard is to be applied. Kennedy Assocs., Inc. v. Fischer, 667 P.2d 174 (Alaska 1983); Hutton v. Monograms Plus, Inc., supra; Restatement (Second) of Contracts § 228.

Here, the contract did not provide the standard for judging the acceptability of the loan, and it was not impracticable to apply an objective reasonable person standard. The parties’ memorandum, which more fully described the terms of a loan arrangement that would be acceptable to defendant, made the term “acceptable” more susceptible of an objective evaluation.

The following colloquy during cross-examination showed that defendant’s president, who negotiated the agreement with plaintiff and signed it on behalf of the corporation, understood that an objective reasonable person standard applied. This was further evidence that it was practicable to apply such a standard.

[COUNSEL FOR PLAINTIFF]: So the standard, then, that you understood was to be applied and acceptable under the contract was the standard of a reasonable businessman in your situation evaluating the circumstances that then existed. Fan-Statement?
[PRESIDENT]: I think that’s a fair statement.
[COUNSEL FOR PLAINTIFF]: Okay. So you understood that if [plaintiff] brought you a proposal that a reasonable businessman in your situation would accept, then he earned his fee, right?
[PRESIDENT]: Right. He earned his fee. Right.

Therefore, we agree with the trial court’s conclusion that performance of the satisfaction clause was based on an objective reasonr able person standard.

Contrary to defendant’s argument, the contract language does not unambiguously indicate that defendant reserved the right, subject only to its good faith, to determine whether a proposal was acceptable. The contract does not clearly indicate that defendant was the sole judge of whether or not the credit facility was acceptable. The agreement also did not define the word “acceptable” with explicit language that provided for acceptability to be determined solely in the subjective judgment of defendant.

Defendant also argues that a subjective standard must be applied in this case because an objective standard cannot be practicably applied. It contends that the multitude of factors involved in evaluating the credit facility proposal precludes the application of an objective standard. However, this argument is undermined by the parties’ memorandum generally outlining the terms of financing that defendant sought. Even if an objective reasonable person standard were not generally applicable to such an agreement, here there was evidence of defendant’s priorities, objectives, and requirements for an acceptable financing agreement. Thus, we conclude the application of a reasonable person standard, while perhaps difficult, was not impracticable.

Accordingly, we conclude that the trial court correctly instructed the jury that an objective reasonable person standard applied to the satisfaction clause.

Finally, defendant contends that if the contract was ambiguous, it presented a question of fact as to what the parties intended. Defendant asserts this issue should have been decided by the jury.

However, defendant did not raise this issue in the trial court. There, defendant did not argue that the jury should decide which standard the parties intended. Further, defendant did not submit proposed jury instructions to that effect. See C.R.C.P. 51. Rather, defendant merely argued that the jury should be instructed on a subjective standard.

Arguments not presented to or ruled on by the trial court are deemed waived and cannot be raised for the first time on appeal. Paine, Webber, Jackson & Curtis, Inc. v. Adams, 718 P.2d 508 (Colo.1986). Accordingly, we will not consider the issue.

Given our resolution of defendant’s principal contention, we need not consider defendant’s contention that the trial court erred by denying its motion for directed verdict.

The judgment is affirmed.

Judge MARQUEZ and Judge ROY concur.


author: Judge DAVIDSON.

text:
    Grant C. TIMROTH, Plaintiff-Appellant, v. Thomas OKEN, as Treasurer of Pitkin County, and Board of County Commissioners of Pitkin County, Colorado, Defendants-Appellees.
    No. 01CA1416.
    Colorado Court of Appeals, Div. I.
    Aug. 1, 2002.
    Rehearing Denied Sept. 12, 2002.
    Certiorari Granted Feb. 3, 2003.

      Wright & Adger, LLP, Gary A. Wright, James F. Fosnaught, Aspen, Colorado, for Plaintiff-Appellant.

      John M. Ely, Pitkin County Attorney, Aspen, Colorado, for Defendants-Appellees.

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

   Opinion by

Judge DAVIDSON.

In this action to quiet title to a mining claim pursuant to C.R.C.P. 105, plaintiff, Grant C. Timroth, appeals from the grant of summary judgment to defendants, Board of County Commissioners of Pitkin County and Thomas Oken, as Treasurer of Pitkin County (collectively, the County). We reverse and remand.

In 1892, Henry L. Powers and Powell Smith received from the United States a patent grant to the subject property, the Twilight Lode Mining Claim. In 1908, a tax sale was held for the taxes of 1907, and, there being no bidders for the property, a tax certificate was issued to the County. In 1964, a treasurer’s deed was issued to the County based on the 1908 sale and certificate. In 1979, John Frances Powers III conveyed his interest in the property to Tyrone Austin Thompson by quitclaim deed. Plaintiffs complaint alleges that John Frances Powers III is an heir of Henry L. Powers, but nothing in the record indicates succession or any transfer of the mining claim from Powell Smith. In 1988, Thompson conveyed the property to plaintiff by special warranty deed.

Plaintiff brought this quiet title action, asserting title based on deeds properly in the recorded chain of title, adverse possession pursuant to § 38-41-101, et seq., C.R.S.2001, and possession and payment of taxes pursuant to § 38-41-108, C.R.S.2001, and also asserting that the County’s claim of title was void. On the parties’ cross-motions for summary judgment, the court quieted title in the County, finding that extrinsic evidence demonstrated that the 1964 treasurer’s deed to the County was valid and vested title in the County.

On appeal, plaintiff contends that the trial court erred in granting summary judgment to the County. Specifically, plaintiff contends that the treasurer’s deed was void on its face, that no extrinsic evidence was admissible to rehabilitate it, and that the County therefore had no interest in the property and should be dismissed as a defendant. The County argues that, even if the deed was void on its face, extrinsic evidence was properly admitted to validate it, and, because plaintiff had not demonstrated that he had a valid claim to title, the County was entitled to judgment based on the legal title conveyed by the deed.

We agree with plaintiff that the grant of summary judgment to the County at this stage of the proceedings was improper. Specifically, we conclude that the 1964 treasurer’s deed is void. We further conclude that extrinsic evidence was not admissible to validate the deed, but was admissible to validate the tax sale, which, under the circumstances, entitled the County to the issuance of a new treasurer’s deed in proper form. However, disputed issues of fact remain as to whether plaintiff is entitled to redeem the property.

I.

We first agree with plaintiff that the 1964 treasurer’s deed is void.

The statutes in effect at the time of the 1908 tax sale required that such a sale be commenced no later than the second Monday of November. See § 5714, R.S.1908 (now codified with amendments at § 39-11-109, C.R.S.2001, which provides for sale on or before the second Monday of December). A provision of the statute providing an exception stated:

If, from any cause, real property can not be duly advertised and offered for sale on or before the second Monday of November, it shall be the duty of the treasurer to make the sale on any subsequent day in which it can be made, allowing time for the publication of notice, as provided in this act.

Section 5715, R.S.1908 (now codified with amendments at § 39-11-110, C.R.S.2001).

A sale commenced after the time required by the statute is invalid, and when the recitals in a treasurer’s deed indicate that the sale commenced later than the second Monday of November, but do not explain any cause for the delay, the deed is void on its face. See City & County of Denver v. Bach, 92 Colo. 594, 22 P.2d 1114 (1933)(also noting the merits of an alternative rule); Hamer v. Glenn Investment Co., 75 Colo. 423, 226 P. 299 (1924). Similarly, a treasurer’s deed is void on its face when the recitals indicate that the final day of the sale occurred later than the day specified by statute, but do not indicate when the sale commenced or give a reason for the late occurrence. See Sierra Mining Co. v. Lucero, 118 Colo. 180, 194 P.2d 302 (1948); Hochmuth v. Norton, 90 Colo. 453, 9 P.2d 1060 (1932).

Here, the deed indicates that the sale concluded on December 12,1908 and that it was an “adjourned sale.” However, it does not indicate the date on which the sale was commenced and from which it adjourned or any reason the sale was held in December rather than on or before the second Monday in November, then, November 9. The preprint-ed portion of the deed form recites that the sale could not be commenced before the second Monday of December, but the recital is, at best, inconsistent. The blank for the year was not filled in, and in 1908, the second Monday of December would have been two days after the date stated for conclusion of the sale. Moreover, the deed gives no reason for the delay, and the County concedes that the sale was commenced on December 10, 1908. Thus, the deed was void on its face.

II.

Plaintiff also argues that the trial court erred in admitting extrinsic evidence to validate the treasurer’s deed. We agree, but conclude that extrinsic evidence is admissible to validate the tax sale.

A.

The treasurer has no title to the property, and his or her power to convey it to another for nonpayment of taxes is purely statutory. Thus, that power is strictly limited to situations where there has been compliance with the statute. Crisman v. Johnson, 23 Colo. 264, 47 P. 296 (1896).

After a valid sale, the treasurer is required to issue a certificate of purchase to the purchaser, or, if there have been no bids and certain other conditions are met, to the county. Sections 5713, 5728, R.S.1908 (now codified with amendments at §§ 39-11-108, 39-11-117, C.R.S.2001). A certificate of purchase carries with it “the right to have the legal title conveyed to [the holder] at the expiration of the time for redemption.” White Cap Mining Co. v. Resurrection Mining Co., 115 Colo. 396, 413, 174 P.2d 727, 735 (1946). The property may be redeemed by the owner at any time within three years from the date of the sale or thereafter at any time before a treasurer’s deed is executed. Section 5734, R.S.1908 (now codified with amendments at § 39-12-103, C.R.S.2001).

A treasurer’s deed may be issued at any time after three years from the date of the sale, after certain notice is given to the owner. Sections 5726, 5727, R.S.1908 (now codified with amendments at §§ 39-11-120, 39-11-128, C.R.S.2001). Recordation of a valid treasurer’s deed vests in the grantee “all the right, interest and estate of the former owner in and to the land conveyed, and also all right, title, interest and claim of the state and county thereto, and shall be prima facie evidence ... [t]hat the sale was conducted in the manner required by law.” Section 5730, R.S.1908 (now codified with amendments at § 39-11-136, C.R.S.2001).

The form of a valid treasurer’s deed must substantially comply with that provided by statute. See § 5729, R.S.1908 (now codified with amendments at § 39-11-135, C.R.S.2001). The deed “should show that the provisions of the law have been substantially followed, and if there is any fatal omission which ought to have been embraced in the deed under the provisions of the statute, the courts cannot supply or cure such fatal defects,” and the deed will not vest title in the grantee. Lines v. Digges, 43 Colo. 166, 172, 95 P. 341, 342-43 (1908). Where the treasurer’s deed on its face shows that the sale has not been conducted in the manner required by law, the deed is void on its face. Whitehead v. Callahan, 44 Colo. 396, 99 P. 57 (1908); see also Imperial Sec. Co. v. Morris, 57 Colo. 194, 197, 141 P. 1160, 1161 (1914)(deed is prima facie evidence unless “some statement therein shows affirmatively that the requirements of the statute were not complied with”).

A void deed fails to convey legal title even if the underlying sale was valid. However, if the deed was irregular or defective because of some mistake of the treasurer, but the proceedings were in fact properly conducted, the holder of the defective deed is entitled to a corrected deed anytime before the owner’s redemption. See Newson v. Jacobs, 51 Colo. 579, 119 P. 623 (1911); Duggan v. McCullough, 27 Colo. 43, 59 P. 743 (1899); Smith v. Griffin, 14 Colo. 429, 23 P. 905 (1890). The authority of the treasurer has been described as follows:

The purchaser at the sale (the proceedings prior thereto having conformed to the statute, in so far as to make them valid and binding) acquires the right to have the legal title conveyed to him at the expiration of the time of redemption (in case no redemption is made); and it is the duty of the treasurer to convey that title to him. Any act of the treasurer which come[s] short of conveying the title (the purchaser having the right thereto), although he may have intended to convey it, does not discharge his duty to convey, and cannot therefore exhaust his power. For, having the power to convey, that power must continue until he does eonvey[.] If he should make a deed void on its face, and hence no deed, or make a deed to the wrong person, or of the wrong parcel of land, such acts would not exhaust his power to make a valid deed to the right person for the right piece of land. For, having the power to convey the land sold to the purchaser, he can only exhaust it by the doing of that particular thing.

McCready v. Sexton & Son, 29 Iowa 356, 382-83 (1870).

In contrast, any deed based on a void sale is also void, even if it appears valid on its face. Empire Ranch & Cattle Co. v. Lanning, 49 Colo. 458, 113 P. 491 (1911); Bryant v. Miller, 48 Colo. 192, 109 P. 959 (1910), overruled on other grounds by Imperial Sec. Co. v. Morris, supra.

A tax sale is void if there is a failure to comply with some statutory provision because, in that case, there is no power in the treasurer to convey the property. Crisman v. Johnson, supra; Gomer v. Chaffee, 6 Colo. 314 (1882). The owner’s legal title is therefore unaffected by a void sale and deed. See Ireland v. Gunnison Mountain Coal & Coke Co., 87 Colo. 193, 198, 286 P. 280, 282 (1930)(Butler, J., concurring).

B.

While a deed that is valid on its face, that is, it substantially complies with the statutory form, is prima facie evidence that the sale was conducted according to law, the invalidity of the tax sale may be demonstrated by extrinsic evidence. Morris v. St. Louis Nat’l Bank, 17 Colo. 231, 29 P. 802 (1892). Absent evidence impeaching the validity of the sale, a deed valid on its face will convey the title of the former owner to the grantee. Dyke v. Whyte, 17 Colo. 296, 29 P. 128 (1892).

Early cases held that when a treasurer’s deed that is void on its face is relied upon as proof of title, extrinsic evidence is not admissible when offered to cure defects in the deed. See Emerson v. Valdez, 24 Colo.App. 458, 135 P. 137 (1913); Page v. Gillett, 47 Colo. 289, 107 P. 290 (1910). However, these and other cases acknowledged that such evidence would be admissible in appropriate circumstances to show a valid sale or that the holder was entitled to a valid deed. See Newsom v. Jacobs, supra.

The County contends, and the trial court agreed, that subsequent supreme court decisions have expressed a willingness to consider extrinsic evidence to validate a treasurer’s deed void on its face. We interpret the cases differently.

In Hamer v. Glenn Investment Co., supra, 75 Colo. at 424, 226 P. at 299, the court specifically avoided addressing the issue of the admissibility of such evidence: “Since, outside the [void] deed, there was no evidence of cause [for the delay in commencing the sale], the question of the competency of such evidence is not before us.” Subsequent cases, citing Hamer, also noticed the lack of record evidence to contradict recitals in a deed indicating statutory noncompliance. See City & County of Denver v. Murry, 82 Colo. 128, 257 P. 359 (1927); Howe v. Bennett, 81 Colo. 20, 253 P. 29 (1927); Wenig v. Lyons, 81 Colo. 6, 252 P. 889 (1927). However, none of these cases held that such evidence, if it existed, would be admissible to directly validate the treasurer’s deed and pass title, rather than to validate the tax sale and thereby entitle the holder to a valid deed.

Other eases more clearly indicate that extrinsic evidence is considered only on the issue of the validity of the sale. See Ireland v. Gunnison Mountain Coal & Coke Co., supra, 87 Colo, at 195, 286 P. at 281 (“This fact invalidates the sales and makes these deeds void on their face.”); Kingore v. Wallace, 85 Colo. 381, 383, 276 P. 332, 332 (1929)(“This sale was therefore held nine days late and, for aught that appears in this record, was void, and the deed under it, containing no explanation of that fact, was void.”); see also Miller v. Stoner, 107 Colo. 317, 111 P.2d 903 (1941)(deed reciting a late sale was void despite the holder’s submission of extrinsic evidence, in the form of an affidavit, indicating the reason for the late sale).

Here, in determining that there was good cause for the delay in conducting the sale, the trial court considered extrinsic evidence that the treasurer had withheld the tax list in October 1908 because ownership of the official newspaper was in dispute. However, contrary to the trial court’s conclusion, a finding of cause for a delay does not support the determination that the deed was valid, but only that the sale was valid and hence the County was entitled to the issuance of a valid deed.

III.

Plaintiff contends that, even if validation of the 1908 tax sale would entitle the County to the issuance of a valid deed, the trial court erred in concluding that the tax sale was valid. We disagree.

First, to the extent that plaintiff contends that the extrinsic evidence, even if admissible, was insufficient to show that cause existed to commence a late tax sale, this argument was not raised in the trial court. Thus, we do not consider it. See Moses v. Diocese of Colorado, 863 P.2d 310 (Colo.1993).

Moreover, while the recitals in the deed indicate that the sale did not comply with § 5714, they do not indicate that other statutory requirements were not met. Although plaintiff contends that the County must now “prove that each and every statutory requirement was satisfied,” he provides no authority for his theory that the strong presumption of validity is destroyed, as to the other requirements, by the single defect. See City & County of Denver v. Bach, supra (burden of proof concerning the regularity of statutory prerequisites to the issuance of a treasurer’s deed is on the attacking party).

Furthermore, we disagree with plaintiff that the court erred in considering the affidavit submitted by the County that attached newspaper articles documenting the trial in which the ownership of the official newspaper was disputed and at which the then county treasurer testified.

While affidavits based on inadmissible hearsay are not sufficient to support a grant of summary judgment, see People v. Hernandez & Assocs., Inc., 736 P.2d 1238 (Colo.App.1986), affidavits containing hearsay that would be admissible under some exception may be considered. See K.H.R. v. R.L.S., 807 P.2d 1201 (Colo.App.1990).

Here, the newspaper articles from 1908 were admissible under the ancient documents exception to the hearsay rule, CRE 803(16). See also CRE 902(6). Thus, the trial court did not err in considering the affidavit to which the newspaper articles were attached.

IV.

Because the 1964 treasurer’s deed is void, plaintiff contends the trial court erred in failing to determine whether he had a valid interest in the property. We agree in part.

The County provided affidavits and other evidence that plaintiffs title was not in the recorded chain of title and that no taxes had been paid on the property since 1900, although a tender of payment by James C. Blanning, Jr., in an undisclosed amount, was refused in 1988. Plaintiff did not reply with any affidavits linking his interest to that of the original patentees or Blanning or otherwise indicating that he held a valid title. Thus, the trial court’s grant of summary judgment to the County on those aspects of plaintiffs claims was correct. See Civil Serv. Comm’n v. Pinder, 812 P.2d 645 (Colo.l991)(Summary judgment is proper when the moving party makes an affirmative showing that no dispute exists and it is entitled to judgment and the nonmoving party does not file counteraffidavits to contradict that showing.).

However, plaintiffs complaint also alleged title by adverse possession. While plaintiff did not provide affidavits or other support for this claim, the County’s only response to this allegation was that title by adverse possession could not be obtained against a governmental entity such as the County. While the trial court’s finding that the tax sale was valid entitles the County to a valid deed, until the treasurer executes such a deed, the County does not have legal title to the property. Thus, whether adverse possession can be asserted against the County is, at this point, immaterial. Consequently, a material question of fact remains whether plaintiff acquired the interests of the original paten-tees or their grantees by adverse possession, and summary judgment for the County on that aspect of plaintiffs complaint was, therefore, improper.

Because the issue may arise on remand, we note that if plaintiff acquired an interest in the property by adverse possession, he would hold legal title to the property subject to the County’s rights obtained in the tax sale. Thus, while the County is entitled to receive a valid deed from the treasurer, prior to the execution of such a deed, plaintiff would be entitled to redeem the property. See § 5734 (property may be redeemed by the owner or “any person having a legal or equitable claim therein ... at any time before the execution of the treasurer’s deed”); First Nat’l Bank v. Fitzpatrick, 624 P.2d 927 (Colo.App.1981)(party that acquired title by adverse possession may redeem prior to the issuance of a treasurer’s deed); cf. Johnson v. Dunkel, 132 Colo. 383, 288 P.2d 343 (1955)(no right to redeem when party did not acquire title by adverse possession).

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

Judge CASEBOLT and Judge STERNBERG , concur.


author: Judge CASEBOLT.

text:
    BOARD OF COUNTY COMMISSIONERS OF DOUGLAS COUNTY, PlaintiffAppellee and Cross-Appellant, v. CITY OF AURORA, a Colorado municipal corporation; and Gartrell Investment Company, L.L.C., a Colorado limited liability company, Defendants-Appellants and Cross-Appellees.
    No. 01CA1380.
    Colorado Court of Appeals, Div. II.
    Sept. 26, 2002.
    As Modified on Denial of Rehearing Dec. 5, 2002.

      J. Mark Hannen, County Attorney, Kurt G. Stiegelmeier, Assistant County Attorney, Castle Rock, CO; Hayes, Phillips & Maloney, P.C., John E. Hayes, Denver, CO, for Plaintiff-Appellee and Cross-Appellant.
    Charles H. Richardson, City Attorney, Robert Rogers, Assistant City Attorney, Robert G. Werking, Assistant City Attorney, Aurora, CO, for Defendantr-Appellant and Cross-Appellee City of Aurora.
    Otten, Johnson, Robinson, Neff & Rago-netti, P.C., Thomas J. Ragonetti, J. Thomas Macdonald, Munsey L. Ayers, Jr., Denver, CO, for Defendant-Appellant and Cross-Ap-pellee Gartrell Investment Company, L.L.C.
    Gorsuch Kirgis, L.L.P., Gerald E. Dahl, Denver, CO; Colorado Municipal League, Carolynne C. White, Denver, CO, for Amicus Curiae Colorado Municipal League.
    Hall & Evans, L.L.C., Josh A. Marks, Denver, CO, for Amicus Curiae Colorado Counties, Inc.
   Opinion by

Judge CASEBOLT.

In this action for review of a land annexation, defendants, the City of Aurora and Gartrell Investment Company, L.L.C. (developer), appeal the judgment in favor of plaintiff, the Board of County Commissioners of Douglas County, voiding the city’s annexation of developer’s property. The county cross-appeals the court’s interpretation and application of an annexation provision. We affirm in part and reverse in part.

Developer filed petitions seeking annexation of three parcels of its land located immediately adjacent to the city’s boundary. The county and others objected to the annexation. After the city annexed the property, the county initiated this action seeking judicial review under § 31-12-116, C.R.S. 2002. The county asserted that its designation as “open space” of two county roads between and adjacent to two of the parcels defeated contiguity requirements; that two “special districts” were not given notice of the annexation hearing; that the city’s annexation impact report was deficient; and that the annexation petition lacked necessary signatures.

The district court agreed with the first three assertions, held that the city had abused its discretion and exceeded its jurisdiction in annexing the three parcels, and voided the annexation. Rejecting the county’s alternative assertion, the court determined that the petitions complied with the signature requirement. This appeal followed.

I.

Defendants contend the court erred in concluding that the county’s designation of two roadways as “county-owned open space” precluded the annexation of two parcels. We agree.

The Municipal Annexation Act of 1965(Act), § 31-12-101, et seq., C.R.S.2002, governs annexation. Judicial review of annexation is a special statutory proceeding and is limited to determining whether the governing body that approved the annexation exceeded its jurisdiction or abused its discretion. Section 31-12-116(3), C.R.S.2002; see Town of Superior v. Midcities Co., 933 P.2d 596 (Colo.1997); TCD North, Inc. v. City Council, 713 P.2d 1320 (Colo.App.1985).

On review, the court must accord great latitude to this legislative discretion and must indulge every reasonable presumption favoring the validity of the annexation. The court is generally limited to determining whether the Act’s procedural mandates have been met, and it may not pass upon the wisdom of the annexation itself. See Town of Superior v. Midcities Co., supra; City of Englewood v. Daily, 158 Colo. 356, 407 P.2d 325 (1965); TCD North, Inc. v. City Council, supra.

Because we are in the same position as the district court in reviewing annexation proceedings, our review is de novo. See City of Colorado Springs v. Bd. of County Comm’rs, 895 P.2d 1105 (Colo.App.1994).

The Act requires the governing body to find that at least one-sixth of the perimeter of the area proposed for annexation is contiguous with the boundaries of the annexing municipality. The contiguity provision then excludes certain lands from the determination, as follows:

Contiguity shall not be affected by the existence of a platted street or alley, a public or private right-of-way, a public or private transportation right-of-way or area, public lands, whether owned by the state, the United States, or an agency thereof, except county-owned open space, or a lake, reservoir, stream, or other natural or artificial waterway between the annexing municipality and the land proposed to be annexed.

Section 31-12-104(l)(a), C.R.S.2002.

Here, there is no dispute that the county roads located between the city and the parcels are public rights-of-way within the meaning of the statute. As such, defendants may satisfy the contiguity requirement by ignoring the two county roads.

A.

The county asserts, however, that its designation of those roadways as “open space” in a resolution passed shortly before the annexation hearing prevents exclusion of the roads in determining contiguity. We disagree.

While the county is authorized to own, dispose of, and designate the uses of real property, it has no authority to define terms employed by the General Assembly in state statutes. See Pennobscot, Inc. v. Bd. of County Comm’rs, 642 P.2d 915 (Colo.1982); Bd. of County Comm’rs v. Gartrell Inv. Co., 33 P.3d 1244 (Colo.App.2001). Rather, interpretation of the Act is a question of law for the court to decide, and our review is therefore de novo. See United Airlines, Inc. v. Indus. Claim Appeals Office, 993 P.2d 1152 (Colo.2000); Minch v. Town of Mead, 957 P.2d 1054 (Colo.App.1998). Accordingly, in determining whether the roadways at issue are open space for purposes of the Act’s contiguity requirement, the county’s designation is not binding.

In construing the provisions of the Act, we seek to give effect to the intent of the General Assembly. In doing so, we first look to the statutory language, giving words and phrases their commonly accepted and generally understood meaning. When the language of the statute is plain and its meaning is clear, we need not resort to interpretive rules of statutory construction, but must apply the statute as written. Town of Superior v. Midcities Co., supra; see § 2-4-101, C.R.S.2002.

Here, “open space” is not specifically defined by the Act. However, that term is generally understood to mean: “Any parcel or area of land or water essentially unimproved and set aside, dedicated, designated or reserved for public or private use or enjoyment or for the use and enjoyment of owners and occupants of land adjoining or neighboring such open spaces.” Black’s Law Dictionary 1091 (6th ed.1990).

This definition comports with the General Assembly’s use of the term elsewhere. See, e.g., § 29-21-101, C.R.S.2002 (types of open space include floodplains, greenbelts, agricultural lands, and scenic areas); § 39-1-102, . C.R.S.2002 (open space includes farmland and forestland). Accordingly, we apply it here.

The property designated by the county has been improved through grading and surfacing and serves as public roadways. Because it is not essentially unimproved, the property is not open space within the meaning of § 31-12-104(l)(a).

We reject the county’s contention that the property only partly consists of roadway. The record reveals that, while not all the roadway is surfaced, its entire length is graded for vehicular use. Moreover, testimony at the annexation hearing likewise established that the property consists of roadways that carry a substantial volume of vehicular traffic. The county’s argument is also belied by the language of its own resolution declaring these roads to be open space, which explicitly and exclusively refers to the county roads by name as the designated open space property.

Because the county roads here are not open space, they do not affect contiguity under the terms of the Act. Hence, the court erred in voiding the annexation of the two parcels for failure to satisfy the contiguity requirement.

Under the circumstances of this case, we need not address whether a parcel of otherwise unimproved property that is traversed by an access road can be described as open space. Limiting our ruling to the facts of this case, we conclude only that a parcel consisting entirely of roadway is not “essentially unimproved” and therefore is not open space.

B.

We reject the county’s contention that defendants lack standing to assert that the resolution designating the roads as “open space” is invalid.

Defendants did not bring an action to invalidate the resolution. Instead, they responded to the county’s argument, in the course of the annexation challenge, that the city abused its discretion or exceeded its jurisdiction by finding that the contiguity requirement was met despite the county’s open space declaration. As parties to the county’s claim brought pursuant to the Act, defendants were entitled to respond to the county’s argument. See § 31-12-116; Mortgage Inv. Corp. v. Battle Mountain Corp., 56 P.3d 1104 (2001) (traditional standing rules do not apply when a defendant’s standing is challenged; once the plaintiff has established standing and the defendants have been brought into court by the plaintiff, the defendants’ only role is to defend against the suit).

For similar reasons, Bird v. City of Colorado Springs, 176 Colo. 32, 489 P.2d 324 (1971), in which the court applied a presumption of validity to the city’s classification of land, is inapposite. While it is true that a presumption of validity would normally apply to the county’s open space designation if a facial challenge to the resolution had been brought, no such challenge was brought here. Moreover, we consider here only the meaning of “open space” as it is used in the Act’s contiguity requirement, not the validity of the county’s designation.

II.

Defendants also contend that the district court incorrectly invalidated the annexation because of inadequacies in the impact report. We agree.

The Act requires the annexing municipality to file an impact report with the county in which the property to be annexed is located. Section 31-12-108.5, C.R.S.2002; see Town of Superior v. Midcities Co., supra.

The impact report must include a map or maps that show:

(I) The present and proposed boundaries of the municipality in the vicinity of the proposed annexation;
(II) The present streets, major trunk water mains, sewer interceptors and outfalls, other utility lines and ditches, and the proposed extension of such streets and utility lines in the vicinity of the proposed annexation; and
(III) The existing and proposed land use pattern in the areas to be annexed.

Section 31-12-108.5(l)(a), C.R.S.2002.

An immaterial variation from the statutory requirements is not fatal, and annexation may not be voided when there has been substantial compliance. See, e.g., Bd. of County Comm’rs v. City & County of Denver, 193 Colo. 325, 566 P.2d 335 (1977); Adams v. City of Colorado Springs, 178 Colo. 241, 496 P.2d 1005 (1972); TCD North, Inc. v. City Council, supra.

Here, the court concluded that the report was inadequate because the map failed to depict the present streets, major trunk water mains, sewer interceptors and outfalls, other utility lines and ditches, and the proposed extension of such streets and utility lines in the vicinity of the proposed annexation. For that reason, the court voided the annexation. Even if we assume, without deciding, that the impact report requirement is jurisdictional and that a failure to comply renders an annexation void, our review of the record nevertheless convinces us that the city was in substantial compliance with that requirement.

The maps supplied by the city showed the general location of major streets and utility lines in the area of the proposed annexation, but did not show proposed extensions of streets and utility lines into the area to be annexed. However, at the annexation hearing, both developer and the city made it clear that final development plans for the area had not yet been drafted, let alone approved. Accordingly, the location of streets and utility lines within the proposed annexation area remained unknown. Thus, providing a map that purported to include these items would have been a futile gesture and would not have given the county any relevant information. We will not require the city to provide more information than it had. See Higley v. Kidder, Peabody & Co., 920 P.2d 884 (Colo.App.1996)(the law does not require performance of a futile act).

Moreover, the Act requires only that the municipality show proposed extensions “in the vicinity of’ the area to be annexed. Section 31-12-108.5(l)(a)(II). The city substantially complied with this requirement by providing maps showing the streets and utility lines near the area to be annexed.

For these reasons, we conclude that the district court erred in determining that the city failed to comply with the impact report requirement.

III.

Defendants next contend the court erred in concluding that the city was required, but failed, to provide notice of the annexation hearing to the Regional Transportation District (RTD) and the Douglas County Soil Conservation District (DCSCD). We agree.

The Act requires the annexing municipality to provide notice of the annexation hearing to any “special district ... having territory within the area to be annexed.” Section 31-12-108(2), C.R.S.2001.

It is undisputed that both RTD and DCSCD have territory within the area to be annexed and that the city did not notify either entity of the hearing. The issue is whether RTD and DCSCD are special districts within the meaning of the Act. We conclude that they are not.

The Act does not define the term “special district,” and that term does not have a commonly accepted and generally understood meaning. When, as here, a plain reading of the statute does not reveal the legislative intent, we may interpret it by considering laws upon the same or similar subject. See Montes v. Hyland Hills Park & Rec. Dist., 849 P.2d 852 (Colo.App.1992); see also § 2-4-203(l)(d), C.R.S.2002.

The Special District Act, § 32-1-101 to 32-1-1605, C.R.S.2002, defines a special district as “any quasi-municipal corporation and political subdivision organized or acting pursuant to the provisions of this article.” Section 32-1-103(20), C.R.S.2002. We conclude that this definition is controlling in this case.

Here, RTD and DCSCD were not created and do not act pursuant to the Special District Act, which is title 32, article 1. Rather, each was created and operates pursuant to its own enabling legislation. See § 32-9-101, et seq., C.R.S.2002 (RTD Act); § 35-70-101, et seq., C.R.S.2002 (Colorado Soil Conservation Act). Both entities are referred to as “districts,” but not as “special districts.” Sections 32-9-105, 35-72-101.5(2), C.R.S. 2002. Accordingly, RTD and DCSCD are not special districts within the meaning of the Act’s notice requirement, and the district court incorrectly voided the annexation because the city failed to give notice to them.

The county contends that the Special District Act definition should not be applied to this notice requirement because in other statutes the General Assembly has used the phrase “special district organized under article 1 of title 32” or similar words when it determined that such a limiting definition was in order, such as §§ 1-1-108(2), 24-19-102(4), and 29-14-103(6), C.R.S.2002. Therefore, the county reasons, had the General Assembly intended to limit the “special districts” receiving annexation notices to those organized under the Special District Act, it would have done so explicitly. The county also notes that the Act does not specify the use of the Special District Act definition or otherwise refer to the Special District Act. We are not persuaded by these arguments.

The General Assembly has not created different classes of special districts that would necessitate a distinction in the Municipal Annexation Act. To the contrary, the Special District Act definition is the only definition of general applicability employed by the General Assembly.

The county asserts that the heading adopted for title 32, “Special Districts,” evinces a legislative intent that all of the entities governed by statutes contained in title 32 (which includes RTD, but not DCSCD) are to be considered special districts, not just those governed by article 1 of that title. However, the arrangement of statutes within code titles is not a legislative act, but is directed by the committee on legal services, which prepares the Colorado Revised Statutes for publication. Section 2-5-101(2), C.R.S.2002. Moreover, a section heading forms no part of the legislative text, and no implication or presumption of a legislative construction is to be drawn solely from it. Section 2-5-113(4), C.R.S.2002; Jones v. Westernaires, Inc., 876 P.2d 50 (Colo.App.1993), overruled on other grounds by Concerned Parents of Pueblo v. Gilmore, 47 P.3d 311 (Colo.2002). Accordingly, we assign no weight to the heading of title 32.

We likewise reject the county’s contention that the Special District Act definition should not be applied because the city provided notice to other entities that are not covered by the definition. The county cites no authority, and we are aware of none, that supports this proposition. Furthermore, we read the Act to describe the minimum notice required, and we therefore attach no significance to the city’s decision to give notice where the Act does not require it.

IV.

In its cross-appeal, the county contends that the court misconstrued a constitutional provision regarding the requirements for annexation by petition. We disagree.

The Colorado Constitution provides that unincorporated territory may be annexed only if the annexing municipality has received a petition “signed by persons comprising more than fifty percent of the landowners in the area and owning more than fifty percent of the area, excluding public streets, and alleys and any land owned by the annexing municipality.” Colo. Const, art. II, § 30(l)(b) (emphasis added).

The issue is whether the exclusion clause applies to the signature requirement relating only to those “owning more than fifty percent of the area” (the area requirement), or also to those “comprising more than fifty percent of the landowners in the area” (the number requirement). We agree with the district court that it applies to both.

Words and phrases must be read in context and construed according to the rules of grammar and common usage. Sections 2-4-101, 2-4-201(l)(c) C.R.S.2002 (court will avoid an interpretation that leads to an absurd result).

There is no logical reason to exclude public streets from the calculation of the size of the area, but then to include public streets when determining the percentage of landowners whose signatures are required. Therefore, the owners of streets and alleys are not required to sign the annexation petitions, and they are not included in calculating the number of owners.

The county contends that this construction runs counter to the “last antecedent” rule, which was in effect when this constitutional provision was enacted. See People v. McPherson, 200 Colo. 429, 619 P.2d 38 (1980), overruled, by § 2-4-214, C.R.S.2002 (last antecedent rule has not been adopted by the General Assembly and does not create a presumption of statutory intent). Under the last antecedent rule, relative and qualifying words and phrases are construed to refer solely to the last antecedent with which they are closely connected, where no contrary intention appears. People v. McPherson, supra.

We conclude that a contrary intention appears here because, as noted, the repetition of the term “area” in both the area requirement and the number requirement reveals an intent that the exclusion clause apply to both.

Accordingly, the court correctly determined that the owners of roads located within the area to be annexed, including Public Service Company, which has an interest in the land under one of the public streets at issue here, did not need to sign the petitions for annexation.

That part of the judgment determining that there was no violation of the petition signature requirement is affirmed. The' balance of the judgment is reversed,

JONES and ROY, JJ., concur.


author: Judge ROY.

text:
    The PEOPLE of the State of Colorado, Plaintiff Appellee, v. Scott Lee RIVERA, Defendant Appellant.
    No. 01CA1773.
    Colorado Court of Appeals, Div. V.
    Sept. 26, 2002.
    Certiorari Denied Feb. 3, 2003.

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

Judge ROY.

Defendant, Scott Lee Rivera, appeals from the district court orders denying two separate motions for postconviction relief. We affirm.

Defendant pleaded guilty to third degree assault, a class one misdemeanor, and violation of custody order, a class five felony with a sentencing cap of four years, in exchange for the dismissal of other charges. The trial court accepted the plea and sentenced defendant to a four-year prison term for his felony conviction, a sentence in the aggravated range, to be served concurrently with a three-year probation term for his misdemeanor conviction.

When defendant committed his offenses in 1999, the presumptive sentencing range for a class five felony was one to three years. Section 18 — 1—105(l)(a)(V)(A), C.R.S.2002. The trial court imposed a sentence in the aggravated range, however, after concluding and making specific findings that extraordinary aggravating factors warranted an extended term. See § 18-1-105(6), C.R.S.2002.

After he was sentenced, defendant, through counsel, filed a combined motion under Crim. P. 35(a) and (c) in which he argued that his prison sentence was illegal because the trial court failed to make specific findings of aggravating factors that would justify a term outside the presumptive range for a class five felony. The district court denied the motion after a hearing.

Defendant, acting pro se, filed a second combined motion under Crim. P. 35(a) and (c) in which he attacked the constitutionality of his prison sentence under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The district court summarily denied defendant’s second motion.

Defendant appeals the denial of both his motions.

I.

Defendant contends that the sentence for his felony conviction is unconstitutional under Apprendi v. New Jersey, supra, and that the district court therefore erred in denying his second postconviction motion for relief. We disagree.

The district court may summarily deny a postconviction motion if the motion, files, and case record clearly establish that the defendant is not entitled to relief. People v. Breaman, 939 P.2d 1348 (Colo.1997). Here, defendant is not entitled to relief because Apprendi does not require a reduction in his sentence.

In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, supra, 530 U.S. at 490, 120 S.Ct. at 2362-63, 147 L.Ed.2d at 455.

In People v. Allen, 43 P.3d 689 (Colo.App.2001), a division of this court held that the principle announced in Apprendi does not apply to the discretionary extraordinary aggravating circumstances under § 18-1-105(6). Other divisions have reached the same conclusion. See, e.g., People v. Harrison, 58 P.3d 1103 (2002); People v. Ramos, 53 P.3d 1178 (Colo.App.2002). We find these cases persuasive here.

In reaching this conclusion, we reject defendant’s reliance on State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001). Gould’s sentence, which was imposed under a statute that authorized an upward durational departure from the presumptive tenn in the presence of certain factors, was vacated on the ground that it violated Apprendi. To the extent that Gould can be read to favor a result contrary to that reached here, we decline to follow it.

We likewise reject defendant’s claim that Allen erroneously interprets and applies the sentencing laws. Defendant takes issue with the statement in Allen that “upon conviction by a jury, and without the proof of more, a defendant is exposed to a maximum sentence ... in the aggravated range.” People v. Allen, supra, 43 P.3d at 692. Contrary to defendant’s assertion, this language in Allen does not authorize an aggravated sentence in all cases where a conviction occurs; it merely recognizes that a defendant who is convicted of a crime is subject to the possibility of a sentence in the aggravated range. Such a sentence may not be imposed, however, unless the trial court specifically finds that the unenumerated extraordinary aggravating circumstances exist. See § 18-1-105(6); People v. Leske, 957 P.2d 1030 (Colo.1998)(a trial court may not impose an aggravated sentence simply because the elements of the offense were proved).

In his petition for rehearing, defendant suggests that People v. Allen, supra, is no longer viable in light of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). We have reviewed Ring and the companion case, Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), and conclude that neither calls into question the holding in Allen.

In Ring, the Supreme Court held the Arizona death penalty sentencing scheme unconstitutional under Apprendi because the judge, not the jury, determined whether any enumerated aggravators had been proved and whether they outweighed any mitigating factors. In that case, the defendant had been convicted of felony murder and, under Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), and Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), the trial court first had to determine whether the defendant had actually killed, or attempted to kill, the victim or whether he was a major participant in the underlying robbery. The trial court concluded that the defendant had killed the victim and that he was a major participant in the robbery. The trial court further concluded that the killing had been for pecuniary gain and that the murder had been committed in an especially heinous, cruel, or depraved manner, both being enumerated aggravators permitting the imposition of the death penalty. The Supreme Court held that this sentencing scheme violated the defendant’s Sixth Amendment right to a jury trial. In characterizing its holding in Apprendi the court stated:

We held that Apprendi’s sentence violated his right to “a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.” That right attached not only to Apprendi’s weapons offense but also to the “hate crime” aggravating circumstance. New Jersey, the Court observed, “threatened Apprendi with certain pains if he unlawfully possessed a weapon and with additional pains if he selected his victims with a purpose to intimidate them because of their race.” “Merely using the label ‘sentence enhancement’ to describe the [second act] surely does not provide a principled basis for treating [the two acts] differently.”
... If a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact — no matter how the State labels it — must be found by a jury beyond a reasonable doubt. A defendant may not be “exposed ... to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.”

Ring v. Arizona, supra, 536 U.S. at —, 122 S.Ct. at 2439-40, 153 L.Ed.2d at 572 (citations omitted-emphasis in original).

In Harris v. United States, supra, the defendant pleaded guilty to a drug trafficking offense. After trial to the court, he also was convicted of a violation of 18 U.S.C. § 924(c)(1)(A) (2002), which, in pertinent part, provides:

Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relátion to any ... drug trafficking crime ... for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such ... drug trafficking crime—
(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and
(iii)if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

At sentencing, the trial court found that the defendant had “brandished” the firearm and sentenced him to seven years imprisonment, consecutive to the sentence for the drug offense. The Supreme Court held that, while a violation of 18 U.S.C. § 924(c)(1)(A) must be charged in the indictment, submitted to the finder of fact, and proved beyond a reasonable doubt, the question of whether the defendant brandished or discharged the firearm is a sentence enhancer that can be determined by the court at sentencing. That is, the statute defines one crime with two sentence enhancers, and not three separate crimes. The Supreme Court, in a plurality opinion, reaffirmed McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), and stated:

Reaffirming McMillan and employing the approach outlined in that case, we conclude that the federal provision at issue, 18 U.S.C § 924(c)(l)(A)(ii), is constitutional. Basing a 2-year increase in the defendant’s minimum sentence on a judicial finding of brandishing does not evade the requirements of the Fifth and Sixth Amendments. Congress “simply took one factor that has always been considered by sentencing courts to bear on punishment ... and dictated the precise weight to be given that factor.” McMillan, 477 U.S. at 89-90, 106 S.Ct. 2411. That factor need not be alleged in the indictment, submitted to the jury, or proved beyond a reasonable doubt.

Harris v. United States, supra, 536 U.S. at —, 122 S.Ct. at 2420, 153 L.Ed.2d at 545.

In our view, the rationale and analysis of Ring and Harris, either separately or collectively, do not require a reexamination of Allen. Ring stands for the proposition that an enumerated aggravator that increases the maximum sentence must be charged, submitted to the finder of fact, and proved beyond a reasonable doubt. Harris holds that a factor normally considered in sentencing that increases a mandatory minimum sentence does not require a charge, submission to the finder of fact, and proof beyond a reasonable doubt.

Here, the trial court aggravated the sentence based on unenumerated and unspecified extraordinary aggravating circumstances frequently considered in sentencing decisions. The trial court considered the violence perpetrated by defendant on his sister and the unstable circumstances in which he placed the child to be aggravating circumstances justifying a sentence in the aggravated range for violation of custody. This type of aggravation was not addressed by either Ring or Harris.

II.

Defendant contends that the sentencing court exceeded its jurisdiction when it imposed a three-year probation term for his misdemeanor conviction where the maximum term of incarceration for the offense was two years. This contention has not been preserved for review.

Issues not raised in a motion for post-conviction relief will not be considered on appeal of the denial of that motion. See DePineda v. Price, 915 P.2d 1278 (Colo.1996)(refusing to consider jurisdictional claim that was not raised in the district court). Here, defendant did not attack the sentence for his misdemeanor conviction in either of his postconviction motions. Thus, we will not consider his assertion of error.

The orders are affirmed.

Judge MARQUEZ and Judge NIETO concur.


author: Judge TAUBMAN.

text:
    Carl A. BLESCH, as coroner of Jefferson County, Colorado; Dave Thomas, as District Attorney for the First Judicial District; Thomas Klebold; and Susan Klebold, Petitioners-Appellees, v. DENVER PUBLISHING COMPANY, d/b/a Rocky Mountain News, Intervenor and Respondent-Appellant.
    No. 01CA0728.
    Colorado Court of Appeals, Div. V.
    Nov. 21, 2002.

      William A. Tuthill, III, County Attorney, Patricia W. Gilbert, Assistant County Attorney, Golden, Colorado, for Petitioners-Appel-lees Carl A. Blesch and Dave Thomas.
    Isaacson, Rosenbaum, Woods & Levy, P.C., Gary Lozow, Denver, Colorado; Patterson, Nuss & Seymour, P.C., Gregg E. Kay, Franklin D. Patterson, Brian C. Proffitt, En-glewood, Colorado, for Petitioners-Appellees Thomas Klebold and Susan Klebold.
    Baker & Hostetler, LLP, Marc D. Flink, D. Rico Munn, Denver, Colorado, for Inter-venor and Respondent-Appellant.
    Elizabeth H. McCann, Assistant Attorney General, Juliana Zolynas, Assistant Attorney General, Denver, Colorado, for Amicus Curiae Colorado Attorney General Ken Salazar.
    Ken Salazar, Attorney General, Alan J. Gilbert, Assistant Attorney General, Denver, Colorado, for Amicus Curiae Columbine Records Review Task Force.
   Opinion by

Judge TAUBMAN.

Appellant, Denver Publishing Company, d/b/a Rocky Mountain News (News), appeals the trial court’s orders refusing to release the bulk of the autopsy report of Dylan Klebold under the Colorado Open Records Act (CORA). We affirm in part, reverse in part, and remand.

In Bodelson v. Denver Publishing Co., 5 P.3d 373 (Colo.App.2000), a division of this court affirmed in part and reversed in part the trial court’s judgment restricting public inspection and disclosure of the autopsy reports of those killed at Columbine High School on April 20,1999.

This appeal relates only to the autopsy report of Dylan Klebold, one of the perpetrators of the shooting.

After the division’s decision in Bodelson, the News sought modification of the trial court’s original judgment, and the trial court agreed, inter alia, to release the first page of Dylan Klebold’s autopsy report. It refused to release the remainder of the autopsy report, and the News appealed. This court granted a limited remand for the trial court to consider the News’ C.R.C.P. 60(b) motion, which the trial court denied.

I. Standing

As a preliminary matter, we address the News’ contention that Dylan Klebold’s parents, Thomas and Susan Klebold, lack standing to invoke the CORA exception to prevent disclosure of their son’s autopsy report because they are not the custodians of that report. We disagree.

CORA allows the custodian to oppose the disclosure of an autopsy report by petitioning the court to restrict the release of the report under certain circumstances. Section 24k-72-204(6)(a), C.R.S.2002.

The law of the case doctrine mandates that decisions by an appellate court must be followed in later proceedings in the trial court. Kuhn v. Dep’t of Revenue, 897 P.2d 792, 795 (Colo.1995). “Conclusions of an appellate court on issues presented to it as well as rulings logically necessary to sustain such conclusions become the law of the ease.” Super Valu Stores, Inc. v. Dist. Court, 906 P.2d 72, 79 (Colo.1995).

Here, the Bodelson division already concluded that the Klebolds had standing for the prior appeal:

Even though the petition was not formally amended to include them, the effect of the May 28 ruling was that the Klebolds joined the petition without objection from the custodians and without qualification. Thus, they were part of the petition brought by a party authorized by statute to bring such a petition and have standing to bring this appeal. Accordingly, the court had jurisdiction to act on the Klebolds’ request....

Bodelson, supra, 5 P.3d at 381.

While the Jefferson County Coroner’s Office and Dave Thomas, district attorney for the First Judicial District, take no position in this appeal as to the release of the Klebold autopsy report, they argue that it was appropriate for the trial court to consider the arguments raised by the Klebolds and that this court should consider those arguments as well. Further, on remand, the News did not request that the trial court again address the Klebolds’ standing.

Therefore, the Bodelson decision concerning the Klebolds’ standing is the law of the case, and we decline to address that issue again in this appeal when it was not raised in the trial court on remand.

II. Motion for Modification of the Original Judgment

The News contends that the trial court abused its discretion in denying the motion for modification of the original judgment. Specifically, the News argues that the trial court erred in not disclosing the complete autopsy report of Dylan Klebold because (1) the custodians of the report did not oppose its release, and (2) the release of the report would not cause substantial injury to the public interest. We reject both contentions.

As to the first argument, even though the official custodian did not take a position regarding its release, the Klebolds’ have standing, as discussed in Part I, to contest the release of their son’s autopsy report.

As to the second argument, there is a presumption of disclosure of public records, with limited exceptions, under CORA, § 24-72-201, et seq., C.R.S.2002. See § 24^72-203(l)(a), C.R.S.2002. Autopsy reports are public records statutorily open to inspection. Section 24-72-204(3)(a)(I), C.R.S.2002. However, public inspection and disclosure of autopsy reports may be prohibited or restricted where such disclosure would cause substantial injury to the public interest. Section 24-72-204(6)(a), C.R.S.2002; Bodel-son, supra, 5 P.3d at 377.

Whether there has been substantial injury to the public interest is a question of fact. Generally, a trial court’s factual findings are reviewed for clear error or abuse of discretion. E-470 Pub. Highway Auth. v. 455 Co., 3 P.3d 18, 22 (Colo.2000). A trial court’s ruling is an abuse of discretion if it is manifestly arbitrary, unreasonable, or unfair. Beauprez v. Avalos, 42 P.3d 642, 652 (Colo.2002).

Here, the trial court conducted an eviden-tiary hearing and an in camera review of the autopsy reports. It considered whether to release the entire autopsy reports of Dylan Klebold and the Columbine tragedy victims, except one victim’s autopsy report which had previously been released. The autopsy report of Dylan Klebold’s accomplice, Eric Harris, had also been released before the hearing.

Various witnesses testified at the hearing, including the city editor of the Denver Post, victims’ family members, and two psychologists. For example, family members of the victims testified that release of the victims’ autopsy reports would be hurtful to the victims’ families and friends. A psychologist, who had conducted an informal, nonscientific survey on the release of autopsy reports, testified that public release of the remaining reports would have a negative impact on some members of the public. In rebuttal, another psychologist testified that release of the reports would trigger emotional reactions, such as grief and anger, in persons close to the victims, but not psychological harm.

Following the hearing, the trial court ordered the release of the complete autopsy report of victim Daniel Rohrbough and the initial portions of all other autopsy reports, including the Klebold report. The initial portions of those reports contain summaries of the findings and conclusions of the autopsies, including the pathology diagnosis and opinion as to cause of death. The trial court concluded that release of the initial portions of the autopsy reports would not cause substantial injury to the public interest because those portions contain nongraphic conclusions as to the type of gun used and part of body impacted.

Thus, we conclude that the trial court did not abuse its discretion in originally releasing only the first page of the Klebold autopsy report.

III. C.R.C.P. 60(b) Motion

The News next contends that the trial court abused its discretion in denying its C.R.C.P. 60(b) motion. Specifically, the motion asserted that as a result of the passage of time and the continued release of law enforcement investigatory reports, including the 2001 crime scene report prepared by the Colorado Bureau of Investigation, following the trial court’s denial of the motion for modification, there was no longer a basis for the trial court to find that substantial injury to the public interest would result from the release of Dylan Klebold’s complete autopsy report. Because we conclude the trial court abused its discretion in denying the C.R.C.P. 60(b) motion, a remand for further proceedings is necessary.

A. Passage of Time and Other Disclosures

We review a trial court’s ruling on a C.R.C.P. 60(b) motion for abuse of discretion. State Farm Mut. Auto. Ins. Co. v. McMillan, 900 P.2d 1243, 1245 (Colo.App.1994), aff'd, 925 P.2d 785 (Colo.1996); see Beauprez v. Avalos, supra.

C.R.C.P. 60(b) provides that a party may be relieved from a final judgment or order when “it is no longer equitable that the judgment should have prospective application,” C.R.C.P. 60(b)(4), or for “any other reason justifying relief from the operation of the judgment,” C.R.C.P. 60(b)(5).

The Bodelson division considered time a significant factor in upholding the trial court’s judgment, noting that the petition was presented only five weeks after the Columbine tragedy and that news organizations were not prohibited from seeking modification of the judgment. Bodelson, supra, 5 P.3d at 378.

Here, the 2001 crime scene report is extremely comprehensive, consisting of thousands of pages. The News included approximately fifty excerpted pages from the crime scene report in support of its C.R.C.P. 60(b) motion.

The crime scene report contains graphic and detailed information regarding the positions, injuries, and causes of death of the thirteen victims and of perpetrators Klebold and Harris. For example, the crime scene report describes one victim as having suffered multiple bullet wounds and details the blood drainage stains from those wounds. It describes the position of another victim’s body, the wound suffered, and the drainage of blood from the victim’s head. Much of this information was not contained in the previously released initial portions of the autopsy reports.

The initial portion of each autopsy report contains a summary of the coroner’s findings and conclusions. The degree of specificity varies among the coroners who authored the reports. The initial portion of Dylan Kle-bold’s autopsy report is very brief, approximately half a page in length. The initial portions of other victims’ autopsy reports are more detailed, including the results of toxicology analysis and details of the wounds inflicted.

In denying the News’ C.R.C.P. 60(b) motion, the trial court found that:

The fact that other records have been published, whether by court order or otherwise, begs the question whether this particular record must be released.
... There is something uniquely personal and graphic about a physician’s report of the step-by-step processes of his examination of a body that stands apart from other documents. This Court infers that a significant segment of our community would not wish to inflict that pain on the surviving family members and friends of the deceased victims.
This Court found, and I still find, that the same inference may reasonably be drawn in respect to Mr. and Mrs. Klebold. They were permitted to join the petition, and in that limited context they are “part of the group.” Whether or not one considers them blameworthy for the actions of their son — a question on which I express no opinion — they are parents who have lost a child. They are parents who state through counsel that they will be terribly hurt if the graphic details of their son’s autopsy are published in the news or on the Internet or elsewhere. This Court’s inference from the evidence is that despite the revulsion that our community feels for both the act and actor, the basic humanity of the members of our community is such that they would not single the Klebolds out for separate treatment where it comes to the publication of the step-by-step conduct of the autopsy of their son.

We conclude that the trial court abused its discretion when it stated that release of the crime scene report “begs the question” whether the complete autopsy report of Dylan Klebold should also be released and when it did not consider the impact of the passage of time. The crime scene report reveals graphic and detailed information that the court should have analyzed before inferring that substantial injury to the public interest would result from the release of the complete Klebold report. Once the graphic details of the injuries and condition of the victims’ and perpetrators’ bodies became known to the public, the context for determining whether disclosure would cause substantial harm to the public interest was fundamentally altered.

The trial court also commented on the graphic and gruesome nature of autopsy reports generally. However, this observation applies to all autopsy reports, not just those in this case. Despite their graphic nature, autopsy reports are still public records open to inspection. See § 24-72-204(6)(a); Bodel-son, supra, 5 P.3d at 377 (CORA’s exceptions are narrowly construed). In addition, similar personal and graphic information has been made public through the release of the complete autopsy reports of Eric Harris, Isaiah Shoels, and Daniel Rohrbough and the initial portions of the remaining autopsy reports.

Finally, the trial court’s order denying the C.R.C.P. 60(b) motion focuses on pain to the Klebolds caused by release of their son’s complete autopsy report. However, the controlling standard is public, not private, injury. Section 24-72-204(6)(a); Bodelson, supra.

Therefore, we conclude that it is necessary to remand this matter to the trial court to reconsider whether, given the passage of time and the release of the crime scene report, the publication of Dylan Klebold’s complete autopsy report still would cause substantial injury to the public interest.

B. Burden of Proof

In light of this remand, we address the Klebolds’ request to clarify the burden of proof when a party moves to modify the trial court’s original order restricting disclosure.

The parties disagree on who bears the burden of proof. The News argues that the burden should remain on the Klebolds to prove that substantial injury to the public interest would occur if the rest of their son’s autopsy report were disclosed. In contrast, the Klebolds maintain that the movant, the News, bears the burden of showing a change in circumstances such that the original judgment is no longer valid. Once that burden is met, the Klebolds assert, the burden then shifts back to them to show that despite the change in circumstances, disclosure would still cause substantial injury to the public interest as required by § 24 — 72—204(6)(a). We agree in part with each party.

The term “burden of proof’ refers to “the obligation to establish the truth of a proposition.” People in Interest of A.D.G., 895 P.2d 1067, 1070 (Colo.App.1994). The burden of persuasion refers to the “burden of persuading the trier of fact that the alleged fact is true.” 2 McCormick on Evidence § 336 (John W. Strong ed., 1999).

The party seeking modification of a trial court’s order bears the burden of persuasion or the burden of going forward with evidence establishing a change in circumstances. See People v. Heilman, 52 P.3d 224, 227 (Colo.2002)(discussing burden of going forward and resulting shift of burden in the context of police searches and seizures); see also 2 McCormick on Evidence, supra, § 337 (“the burdens of producing evidence and of persuasion with regard to any given issue are both generally allocated to the same party”).

Accordingly, once the News meets the burden of going forward by establishing a change in circumstances, the Klebolds then assume the burden to prove that disclosure of the full Klebold autopsy report would cause substantial injury to the public interest to overcome the presumption in favor of disclosure of autopsy records. See § 24-72-204(6)(a); Bodelson, supra, 5 P.3d at 377; see also ORE 301 (burden of proof remains on party “on whom it was originally cast”).

Here, there is an undisputed change in circumstances based on the release of the crime scene report. Thus, the News has met its burden of going forward. As a result, on remand, the Klebolds have the burden to establish that disclosure of the full Klebold autopsy report would cause substantial injury to the public interest.

In light of our disposition, we do not address the parties’ remaining contentions.

The order denying modification of the original judgment is affirmed, the order denying the News’ C.R.C.P. 60(b) motion is reversed, and the case is remanded for further proceedings consistent with this opinion.

Chief Judge HUME and Judge WEBB concur.