author: Judge CASEBOLT.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Warren M. WOELLHAF, Defendant-Appellant.
    No. 00CA2351.
    Colorado Court of Appeals, Div. V.
    June 19, 2003.
    As Modified on Denial of Rehearing Aug. 28, 2003.
    Certiorari Granted March 22, 2004.

      Ken Salazar, Attorney General, Lauren Edelstein Park, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Naney J. Lichtenstein, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

       Justice BENDER would grant as to the following issue:
      Whether defendant's due process rights to notice of the charges against him and due process rights to a fair trial were violated, when (1) the trial court denied a bill of particulars and failed to required the prosecution to elect, (2) the defendant was led to believe, inaccurately, from the generic nature of the charges filed and representations by the prosecutor, that he was being prosecuted for offenses that happened on separate dates, and (3) the defendant was thereby prevented from effectively presenting a defense.

   Opinion by

Judge CASEBOLT.

Defendant, Warren M. Woellhaf, appeals the judgment of conviction entered upon jury verdicts finding him guilty of four counts of sexual assault on a child pattern, four counts of sexual assault on a child by one in a position of trust-pattern, and one count of aggravated incest. Defendant also appeals the sentences imposed upon those convictions. We affirm in part, vacate in part, and remand for further proceedings.

When she was five years old, defendant's daughter told her foster mother that defendant bad subjected her to sexual contact while she was living with him and her mother at a motel. In the investigation that followed, a social services caseworker and a child psychologist interviewed the victim and recorded the interviews on videotape.

During the interviews, the victim identified various acts of sexual contact, stating that they had happened ten times. However, because of her age, she was unable to list dates or particular times that the abuse had occurred. The time frame for the asserted acts covered a one-month period when the victim resided with her parents at the motel.

At trial, following its case-in-chief and after defendant had moved for judgment of acquittal, the prosecution elected and specified the sexual acts that supported each of the four sexual assault counts, reflecting each of the four particular types of sexual contact that the victim had identified. These were penile penetration, digital penetration, the rubbing of lotion on her vagina, and ejaculation on her stomach. The prosecutor specified that each of the assault-pattern counts and position of trust pattern counts would correspond with the four sexual acts specified by the victim.

Defendant was convicted on all counts. The court sentenced him to an aggregate of forty-eight years in the custody of the Department of Corrections: twelve years for each sexual assault on a child pattern count, to be served consecutively, and twelve years on each remaining count, to be served concurrently.

This appeal followed.

L.

Defendant was charged with violating § 18-8-405(1), C.R.8.2002, which proseribes sexual assault on a child, and violating § 18-3-405.3(1), C.R.8.2002, which prohibits sexual assault on a child by one in a position of trust. He first contends that these charges, which were all identically worded in the information and alleged as four separate violations of these two statutes, were multiplicitous, because the jury was permitted to conclude that the offenses occurred during a single eriminal episode. Specifically, defendant argues that because all of the particular types of sexual contact alleged in the counts could have occurred during one incident, he essentially was convicted of the same crime four times for each involved statute, thus violating the constitutional prohibition against double jeopardy. We disagree.

As relevant here, the state and federal Double Jeopardy Clauses protect individuals against multiple punishments for the same offense. Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 189 LEd.2d 450 (1997); Deutschendorf v. People, 920 P.2d 53 (Colo.1996).

Multiplicity is the charging of the same offense in more than one count. It is considered a pleading defect and thus is not fatal to an indictment or information. However, one vice of multiplicity is that it may lead to multiple convictions and sentences for the same offense. C. Wright, Federal Practice and Procedure: Criminal 2d § 142 (1982 & 1987 Supp.); see People v. Borghest, 66 P.3d 98 (Colo.2008).

The established test for determining whether two offenses are sufficiently distinguishable to allow successive prosecutions for separate statutory offenses is whether "each [statutory] provision requires proof of an additional fact which the other does not." Blockburger v. United States, 284 U.S. 299, 804, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1982).

However, when, as here, multiple violations of the same statute are involved, the determination of whether double jeopardy bars prosecution for the same statutory offense involves a different analysis. The court must examine the scope of prosecution authorized by the statutory proscription and then the factual components of each prosecution and the evidence in support thereof. See Samabria v. United States, 487 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 48 (1978); People v. Williams, 651 P.2d 899 (Colo.1982); Brown v. State, 311 Md. 426, 585 A.2d 485 (1988).

A.

The seope of prosecution is set by determining the legislatively prescribed "allowable unit of prosecution." That prescription "determines the scope of protection offered by a prior conviction or acquittal. Whether a particular course of conduct involves one or more distinet 'offenses' under the statute depends on this [legislative] choice." People v. Williams, supra, 651 P.2d at 903 (quoting Sanabria v. United States, swora, 437 U.S. at 69-70, 98 S.Ct. at 2181-82, 57 L.Ed.2d at 57).

In determining the allowable unit of prosecution, we examine whether a statute proscribes a continuous course of conduct or prohibits specific acts. People v. Williams, supra. As the Supreme Court stated in Blockburger v. United States, supra, 284 U.S. at 302, 52 S.Ct. at 181, 76 L.Ed. at 306 (quoting Wharton's Criminal Law, § 34 n. 8 (11th ed.)), "The test is whether the individual acts are prohibited, or the course of action which they constitute. If the former, then each act is punishable separately.... If the latter, there can be but one penalty." The Blockburger Court, in holding that two narcotic sales constituted separate acts even though made to the same person, contrasted that determination with the case of Ex parte Snow, 120 U.S. 274, 7 S.Ct. 556, 80 L.Ed. 658 (1887), which held that the offense of cohabit, ing with more than one woman was a continuous offense, because it "had duration" and did not consist of an isolated act. The distinction between the types of offenses, said the Court, again quoting Wharton's, is, "[When the impulse is single, but one indictment lies, no matter how long the action may continue. If successive impulses are separately given, even though all unite in swelling a common stream of action, separate indictments lie." See also Bustamante v. People, 136 Colo. 362, 817 P.2d 885 (1957)(if a violation of law is not continuous in its nature, separate indictments or informations may be maintained for each violation; a distinct repetition of a prohibited act, even on the same day, may constitute a second offense and incur an additional penalty).

Hence, the particular act referred to in the statute at issue is a determining factor. Whether that act is of a discrete or continuing nature is critical. See Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 8 L.Ed.2d 199 (1958)(statute proscribing assault supported only one conviction where a single shot wounded two officers); Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955)(statute proscribing knowingly transporting any woman or girl for an immoral purpose held to support only one conviction for simultaneously transporting two women because the act of transportation was a single one); Ebeling v. Morgan, 287 U.S. 625, 35 S.Ct. 710, 59 L.Ed. 1151 (1915)(defen-dant properly convicted of six violations of a statute providing that "[wJhoever shall tear, cut, or otherwise injure any mail bag ... shall be fined," even though he cut the six mail bags during the same criminal episode).

Here, pursuant to § 18-3-405(1), a person commits the crime of sexual assault on a child whenever he or she "knowingly subjects another not his or her spouse to any sexual contact ... if the victim is less than fifteen years of age and the actor is at least four years older than the victim." Under § 18-3-405.8(1), a person commits the crime of sexual assault on a child by one in a position of trust whenever he or she "knowingly subjects another not his or her spouse to any sexual contact ... if the victim is a child less than eighteen years of age and the actor committing the offense is in a position of trust with respect to the victim."

Both statutes criminalize the act of subjecting another to "any sexual contact," which is defined, as relevant here, as the "knowing touching of the victim's intimate parts by the actor, or of the actor's intimate parts by the victim." Section 18-8-401(4), C.R.S.2002. "Intimate parts" means "the external genitalia or the perineum or the anus or the buttocks or the pubes or the breast of any person." Section 18-8-401(@2), CRS. 2002.

Because of the disjunctive "or" used in each definitional component of the statute, and because both statutes criminalize "any" prohibited contact, we read the proscription against "sexual contact" to apply to each act of knowingly touching the described intimate parts of the body. Thus, each instance of contact with the described part of the anatomy constitutes an allowable unit of prosecution and a separate violation of the statute. It does not matter that the acts of touching all occur within the same incident.

Each knowing act of touching must, however, be different, distinct, or factually separate. See Blockburger v. United States, supra; Sanches-Rengifo v. United States, 815 A.2d 351 (D.C.2002). Touching and charges based thereon are different, distinct, or factually separate in fact if, for example, they are separated in time, place, or manner, if they require separate acts of volition, or if they are otherwise of a significantly different nature. See State v. Anderson, 219 Wis.2d 739, 580 N.W.2d 329 (1998). Thus, distinct, separately chargeable crimes are not necessarily committed when a person commits an act of sexual contact, such as penile penetration numerous times during the course of a single, unlawful act of sexual intercourse. Such a determination turns on the second part of the analysis under People v. Williams, supra, concerning the factual components of each prosecution and the evidence in support thereof.

The rationale for this result is obvious. If each separate, different, or distinct act were not a separate offense, a person who has committed one sexual assault upon a victim could commit with impunity many other acts during the same encounter, and the commission of one act would insulate the perpetrator from further criminal liability for any additional acts of the same character perpetrated on the same victim in the same encounter. Such a result defies rationality. See State v. Frazier, 185 Conn. 211, 440 A2d 916 (1981)(each separate act of forcible sexual intercourse constitutes a separate crime; a different view would allow a person who has committed one sexual assault to commit with impunity many other such acts during the same encounter); State v. Caprio, 85 Hawai'i 92, 937 P.2d 983 (App.1997)(holding that, because sexual assault was not a continuous offense, defendant's convictions on five counts, each of which was based on a separate and different type of contact occurring during a single incident, did not violate statutory provision prohibiting conviction for more than one offense when offense is defined as a continuing course of conduct).

This result is consistent with the analysis of similar statutes and resolution of the issue by other courts that have faced the question. See Loeblein v. Dormire, 229 F.3d 724 (8th Cir.2000)(sexual assault under Missouri law is not inherently a continuous crime, because any penetration, however brief, suffices to meet the definition); State v. Arceo, 84 Hawai'i 1, 928 P.2d 843 (1996)(sexual assault is not a continuing offense; each distinct act constitutes a separate offense); State v. Horswill, 45 Haw. 152, 857 P.2d 579 (1993)(each act constituting a sexual assault is punishable as a separate and distinct offense); Cooksey v. State, 359 Md. 1, 752 A.2d 606 (2000)(statute defining second degree sexual offense as engaging in "a sexual act" with another person and statute defining third degree sexual offense as engaging in "sexual contact" were not continuing offenses; they were committed when the pro-seribed acts occurred); State v. Boozer, 304 Md. 98, 497 A.2d 1129 (1985)(separate acts resulting in separate insults to the person of the victim may be separately charged and punished even though they occur in very close proximity to each other and even though they are part of a single criminal episode or transaction); State v. Wilkins, 872 S.W.2d 142 (Mo.Ct.App.1994)(where there is sexual contact with various parts of the body of the victim, each represents a separate and distinct offense, even though they arose from the same set of cireumstances or same transaction); State v. Williams, 105 N.M. 214, 730 P.2d 1196 (N.M.Ct.App.1986)(statute prohibiting sexual contact interpreted to protect victim from intrusions to each enumerated body part; therefore separate punishments sustainable where evidence shows distinctly separate touchings to the different parts); State v. Suarez 786 P.2d 1040 (Utah Ct.App.1987)(separate acts of placing mouth on breast and hand on vagina constituted separate offenses, even though charged under same statute); State v. Rummer, 189 W.Va. 369, 432 S.E.2d 39 (19983)(statute prohibiting sexual contact violated twice when defendant touched two prohibited areas of victim's body during same episode); Frenzel v. State, 988 P.2d 867 (Wyo.1997)(individual acts of sexual intrusion are prohibited by statute); Parker v. State 882 P.2d 1225 (Wyo.1994)(legislature intended to define sexual intercourse, fellatio, and other acts of sexual intrusion as separate and distinct crimes); Baum v. State, 745 P.2d 877 (Wyo.1987)(separate and distinct acts of sexual intrusion, even those separated in time only by a matter of seconds, can properly be punished as separate crimes without violating principles of double jeopardy); see also State v. Griffin, 148 Ariz. 82, 718 P.2d 288 (1986)(rejecting double jeopardy claim where each of four different kinds of sexual contact was performed in an entirely different manner, was independent of the others, and was completed prior to the beginning of the next act, even though committed within a relatively short time span); State v. Frazier, supra (each separate act of sexual intercourse constitutes a separate crime); State v. Patch, 135 NH. 127, 599 A.2d 1248 (1991)(each act of sexual contact constitutes a separate felonious assault); State v. Sauceda, 168 Wis.2d 486, 485 N.W.2d 1 (1992)(violation by commission of any different type of sexual assault does not immunize a defendant from violating the same or any other subsections during the course of sexual misconduct).

B.

We turn next to the factual components of the prosecution and the evidence offered.

Here, the prosecution specified and presented evidence upon four different types of sexual contact for the sexual assault charges: penile penetration; digital penetration; rubbing lotion on the vagina; and ejaculation on the stomach. Defendant was also charged with one corresponding position of trust count for each type of sexual contact.

Each instance of sexual contact was distinct, different, and factually separate. Each required a separate volitional act and was of a different nature. Each offense was necessarily complete when the particular sexual contact occurred, regardless of whether or when other sexual contacts occurred. Therefore, each constituted a separate offense.

Accordingly, we conclude that defendant's convictions on four separate counts of sexual assault on a child and four separate counts of sexual assault on a child by one in a position of trust, based on different types of sexual contact specified and proved here, do not violate the constitutional prohibition against double jeopardy. It therefore follows that defendant could not and did not receive more than one sentence for each single offense. Thus, the charges were not multiplicitous. See People v. Martines, 36 P.3d 154 (Colo.App.2001)(defendant correctly charged with two counts of second degree sexual assault on the same victim on the same day when the offenses were separate and distinct and required proof of different facts to establish their elements).

IL.

Defendant next contends that the convictions for pattern of abuse enhancements must be reversed because, under the jury instructions given and the evidence presented, the jury could have found that all of the sexual contacts occurred during the same episode. We agree.

Initially, we note that a plain error standard of review applies here because defendant did not object in the trial court. Plain error occurs when, after a review of the - entire record, an appellate court can say with fair assurance that the error so undermined the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction. Bogdanov v. People, 941 P.2d 247 (Colo.1997).

Under § 18-8-405(2), C.R.S.2002, sexual assault on a child is a class 4 felony, but becomes a class 3 felony if:

(d) The actor commits the offense as a part of a pattern of sexual abuse.... No specific date or time must be alleged for the pattern of sexual abuse; except that the acts constituting the pattern of sexual abuse must have been committed within ten years prior to or at any time after the offense charged in the information or indictment. The offense charged in the information or indictment shall constitute one of the incidents of sexual contact involving a child necessary to form a pattern of sexual abuse as defined in section 18-3-401(2.5).

Section 18-3-401(2.5), C.R.S.2002, defines a "pattern of sexual abuse" as "the commission of two or more incidents of sexual contact involving a child when such offenses are committed by an actor upon the same vice-tim."

As we have determined above, multiple sexual contacts occurring during one episode each may constitute an offense subject to separate prosecution and punishment, depending upon the facts of the case. However, we must now determine whether multiple sexual contacts occurring during one sexual assault episode may be punished as a pattern of abuse. This determination turns on whether the "two or more incidents of sexual contact" specified in § 18-3-401(2.5) as constituting a pattern means something different from "acts constituting the pattern of sexual abuse" in § 18-8-405(2)(d).

In construing a statute, we must ascertain and effectuate the legislative intent, which is to be discerned, when possible, from the plain and ordinary meaning of the statutory language. People v. Longoria, 862 P.2d 266 (Colo.1998). Constructions that defeat the obvious legislative intent should be avoided, and, when possible, a statute should be interpreted so as to give consistent and sensible effect to all its parts. People v. Dist. Court, 718 P.2d 918 (Colo.1986). We presume that the General Assembly intends a just and reasonable result when it enacts a statute, and we will not follow a statutory construction that defeats the legislative intent or leads to an unreasonable or absurd result. People v. Drake, 988 P.2d 185 (Colo.App.1999). We must endeavor to give effect to each word in a statute. City .of Florence v. Bd. of Waterworks, 798 P.2d 148 (Colo.1990).

Defendant argues that "incident" means something different from "act," noting that the General Assembly has used those words separately in the statutes. The People read the words as synonyms, noting that the General Assembly used the words "offense[s]," "acts," and "incidents" within the same statutory provision. We agree with defendant.

The word "incident" can mean not only a separate unit of experience, but also an occurrence taking place as part of a larger continuum or a happening or related group of happenings subordinate to a main plot. Hence, an incident may logically include a series of acts committed in close proximity or a chain of events forming a part of a schematic whole. See People v. Beyer, 768 P.2d 746 (Colo.App.1988). However, to construe "incident" as used in § 18-8-401(2.5) as synonymous with "act" would essentially render the pattern of abuse enhancement meaningless or absurd because a pattern always would be established in every sexual assault in which there is more than one sexual contact. Such an interpretation contradicts the General Assembly's purpose in enacting the statute to punish more severely the person who commits numerous sexual assaults on a child over a period of time. See People v. Longoria, supra (General Assembly's passage of the pattern of abuse sentence enhancer was part of an effort to distinguish the perpetrator who commits one offense from the person who commits numerous sexual assaults on a child; pattern definition provides an intelligent standard for permitting a rational distinction between a pattern of sexual abuse and one instance of sexual assault on a child).

For these reasons, we conclude that the phrase "two or more incidents of sexual contact" in the definition of pattern of abuse means that the sexual contacts must occur during distinct episodes of sexual assault and be separated by time or an intervening event. See State v. Fortier, 146 NH. 784, 780 A.2d 1248 (2001)(pattern of sexual abuse statute requiring commission of at least two acts of sexual assault within prescribed period erimi-nalizes a continuing course of sexual assaults over a period of time, not a single incident).

Here, the jury instruction defining pattern of abuse was phrased in the statutory language requiring the jury to find that defendant committed two or more incidents of sexual contact with the victim. An instruction that tracks the language of a statute is ordinarily sufficient. People v. James, 40 P.3d 36 (Colo.App.2001). Further, absent evidence to the contrary, we presume that a jury follows the trial court's instructions. People v. Harlan, 8 P.3d 448 (Colo.2000).

However, the verdict forms employed for the sexual assault on a child-pattern counts and the sexual assault-position of trust counts allowed the jurors to check a box to make the following pattern finding:

We, the jury, unanimously find, beyond a reasonable doubt, that the defendant committed two or more acts of sexual contact with the victim described by the evidence between August 16, 1998 and September 16, 1998. The jurors unanimously find that the same two or more acts have been proven beyond a reasonable doubt.

Thus, the verdict form allowed a pattern finding for two or more acts, not two or more incidents. In addition, during closing arguments, the prosecutor told the jury:

If you believe that two-at least two of these different types of sexual acts took place, there's a pattern. Two or higher is a pattern. If you were to find that one out of those four happened, and only one, then there's no pattern. After he touches her twice, he's committed a pattern of sexual abuse with that second contact.

While defendant did not object to the prosecutor's statement, it was, nevertheless, a misstatement of the law because it invited the jury to find defendant guilty of the pattern of abuse enhancements based on any two sexual acts, not any two separate incidents of sexual contact.

Hence, while the jury was properly instructed that a pattern of abuse meant the commission of two or more incidents, it was not instructed to find that the sexual acts occurred during separate incidents. And the verdict form and the prosecutor's argument permitted the jury to equate any two acts with two separate incidents. Consequently, as the People acknowledge, we have no way of knowing how many incidents of sexual contact the jury found to have occurred.

We conclude that the prosecutor's statement during closing arguments, when coupled with the jury verdict form and the fact that the victim was unable to identify particular dates or occasions of the sexual abuse, undermined the fundamental fairness of the trial as to the pattern of abuse counts and, therefore, constituted plain error. See People v. Garcia, 1 P.8d 214 (Colo.App.1999), aff'd, 28 P.3d 840 (Colo.2001).

Consequently, we must vacate the pattern enhancements on the eight sexual assault counts. However, this determination does not affect the findings of guilt as to those eight counts, but merely affects their enhancement.

IIL

Defendant contends that the trial court erroneously concluded that the erime of violence sentencing provisions found in § 18-1.3406, C.R.S.2002, required consecutive sentences for the four separate counts of sexual assault on a child. Specifically, he argues that because each particular sexual act could have occurred during separate incidents, that statute was not applicable and, thus, the court had discretion in deciding whether to impose consecutive sentences. We agree.

Section 18-1.3-406 requires that a person convicted of two or more separate crimes of violence arising out of the same incident shall be sentenced so that sentences are served consecutively rather than concurrently.

We note that, on appeal, both the People and defendant take positions on this issue that contradict their stated positions concerning "incidents" of sexual contact as noted above. Nevertheless, it is undisputed that the trial court imposed consecutive sentences because it believed, as did the parties, that § 18-1.3-406(1)(a), C.R.S.2002, applied to defendant's convictions and that consecutive sentencing was mandatory.

However, based on the record before us, and as the People acknowledge, it cannot be discerned whether the acts of sexual contact for which defendant was convicted occurred during one incident or multiple incidents. Because we cannot determine whether the crimes arose from one or more than one incident, the consecutive sentences must be vacated. Nevertheless, on remand, the court may exercise its discretion to sentence defendant to consecutive sentences, or it may impose concurrent sentences.

IV.

Defendant next contends that the trial court abused its discretion in denying his challenge for cause to a prospective juror. We disagree.

-In reviewing a trial court's ruling on a challenge for cause to a prospective juror, we must determine whether the trial court abused its discretion. This standard gives deference to the trial court's assessment of the credibility of a prospective juror's responses, recognizes the trial court's unique role and perspective in evaluating the demeanor and body language of live witnesses, and serves to discourage an appellate court from second-guessing those judgments based on a cold record. Carrillo v. People, 974 P.2d 478 (Colo.1999).

It is within the trial court's prerogative to give considerable weight to a potential juror's statement that he or she can fairly and impartially serve on the case. If the trial court is satisfied that a potential juror will render a fair and impartial verdict according to the law and the evidence submitted at trial, that person should not be disqualified. People v. Sandoval, 738 P.2d 819 (Colo.1987).

Here, the prospective juror indicated on her questionnaire that she had previously worked with child sexual assault victims. During voir dire, she initially expressed some doubt as to defendant's innocence. However, when questioned further, she indicated that she would try to put her biases aside and would want to listen to the evidence. She also told the court that she thought she could be fair.

Defense counsel challenged this juror for cause, and the court denied the challenge, finding that, based on all of the statements made by this juror, she could be fair and objective.

In light of the juror's responses during voir dire, we conclude that the trial court was justified in determining that this juror would follow its directions and render a fair and impartial verdict. Hence, we perceive no abuse of discretion in the court's decision to deny defendant's challenge for cause.

V.

Defendant contends that the trial court violated his due process rights by denying his request for a bill of particulars and by not requiring the prosecution to specify before trial which incident supported each charge. We disagree.

A bill of particulars is intended to enable the defendant to prepare a defense in cases where the information, although sufficient to advise the defendant of the charges raised, is nonetheless so indefinite that it does not afford the defendant a fair opportunity to procure witnesses and prepare for trial. Erickson v. People, 951 P.2d 919 (Colo.1998).

The decision to grant or deny a request for a bill of particulars is vested in the sound discretion of the trial court, and its ruling will not be disturbed on review absent an abuse of that discretion. People v. Laurson, 15 P.3d 791 (Colo.App.2000); People v. Atencio, 780 P.2d 46 (Colo.App.1989). The trial court abuses its discretion in this regard only if its ruling is manifestly arbitrary, unreasonable, or unfair. People v. Mandezs, 997 P.2d 1254 (Colo.App.1999).

Here, defendant filed a request for a bill of particulars, alleging that discovery had not provided enough details about the nature of the sexual contact or a specific location and date for each count. The prosecution responded that it had provided defendant with all the evidence it intended to present at trial, including the videotape and the victim's statements in which she described the types of sexual contact. The prosecutor indicated no more information was available.

Defendant was well aware that the victim could not differentiate particular dates or occasions on which she said the abuse occurred, and he further knew that the original charges specified a one-month period during which the crimes were alleged to have occurred and that they all had occurred at a motel.

Because the videotape contained all the evidence the prosecution had describing defendant's conduct, a bill of particulars would not have aided defendant in preparing his defense. See Thomas v. People, 808 P.2d 144 (Colo.1990)(in most instances, defendant can obtain adequate information to prepare a defense through the charging document, the preliminary hearing, and the discovery process). Thus, the trial court did not abuse its discretion in denying defendant's request.

Nevertheless, defendant contends that he was denied a fair trial because the prosecution did not specify the particular acts on which it was going to base the charges until after presentation of its case-in-chief. We reject this contention.

There is no requirement that the prosecution elect specific incidents before the conclusion of its case-in-chief. See Thomas v. People, supra.

VI.

Defendant asserts that the trial court engaged in behavior that could be construed as sympathetic to the victim and thus denied him a fair trial,. We reject this contention.

Trial courts are accorded broad discretion to regulate courtroom conduct and to preserve order during judicial proceedings. Wilkerson v. Dist. Court, 925 P.2d 1378 (Colo.1996).

Here, the trial court allowed the vie-tim to testify from a chair that was located closer to the jury than the witness stand so that the jury could hear her better. When the jury was brought into the courtroom, the court instructed the jurors that the seating arrangements should not affect the way in which they viewed the victim's testimony.

In the absence of evidence to the contrary, the jury is presumed to have heeded the trial court's instructions. People v. Harlan, supra. Consequently, we perceive no abuse discretion in the court's decision to allow the victim to sit closer to the jury.

Similarly, we reject defendant's contention that he was denied a fair trial based on the court's comment to the victim that she was "like a t.v. star" because she used a microphone during her testimony and the prosecutor's rejoinder that she was "like Britney Spears." When viewed in the context of the trial setting, these comments, while inadvisable, were clearly attempts to assuage the victim's fear in testifying and were not comments on her credibility. Accordingly, we perceive no abuse of discretion.

VIL

Defendant contends, the People concede, and we agree that the trial court erred in imposing a period of mandatory parole.

A person convicted of a sexual offense committed after July 1, 1996, but before November 1, 1998, is subject to a period of discretionary parole, not longer than the remainder of the maximum sentence of incarceration imposed by the court. People v. Cooper, 27 P.8d 348 (Colo.2001).

Here, all the counts were based on acts alleged to have occurred on or between August 16 and September 16, 1998. Accordingly, we must remand the case to the trial court to amend the mittimus to reflect that defendant is subject to a period of discretionary parole, not mandatory parole.

VIII.

Last, defendant contends that the trial court erred in finding that he was a sexually violent predator. We agree in part.

As pertinent here, pursuant to § 18-3-414.5(1)(a), C.R.S.2002, a "sexually violent predator" is someone: (1) who is eighteen years of age or older at the time the offense is committed; (2) who has been convicted of sexual assault on a child by one in a position of trust; (8) whose victim was a stranger or a person with whom the offender established or promoted a relationship primarily for the purpose of sexual victimization; and (4) who, based upon the results of a risk assessment screening, is likely subsequently to commit another sex assault. The statute requires the court to make specific findings of fact and enter an order concerning whether the defendant is a sexually violent predator. Section 18-8-414.5(2), C.R.8.2002.

Here, the trial court found that, based on the sereening and evaluation, defendant was a sexually violent predator and ordered that the mittimus so indicate. However, there is nothing in the record to indicate that the third requirement of the sexually violent predator definition was met. To the contrary, the victim here was defendant's daughter and thus not a stranger. And the trial court did not make any factual findings on the nature of defendant's relationship with his daughter. Thus, we must remand this case to the trial court to make specific findings of fact and enter an order based thereon.

The judgment of conviction is affirmed, except that the pattern enhancements for the sexual assault on a child and sexual assault on a child by one in a position of trust counts are vacated. The sentence for the pattern of abuse enhancements on the eight sexual assault counts are vacated. The imposition of consecutive sentences, mandatory parole, and the sexually violent predator finding are also vacated. The case is remanded to the trial court for further proceedings consistent with the views expressed in this opinion.

Judge TAUBMAN and Judge NIETO concur.


source: Caselaw Access Project

author: Judge NEY.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Louis A. MADDEN, Defendant-Appellant.
    No. 02CA0024.
    Colorado Court of Appeals, Div. II.
    Aug. 14, 2003.
    Rehearing Denied Oct. 16, 2003.
    Certiorari Granted April 5, 2004.

      Ken Salazar, Attorney General, John J. Fuerst, III, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Jason C. Middleton, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VL, § 5(3), and § 24-51-1105, C.R.S.2002.

   Opinion by

Judge NEY.

Defendant, Louis A. Madden, appeals the judgment of conviction entered upon jury verdicts finding him guilty of attempted patronizing a prostituted child and attempted third degree sexual assault. We affirm in part, reverse in part, and remand for a new trial on the assault charge.

According to the People's evidence, on January 21, 2000, the fourteen-year-old vie-tim boarded a trolley operated by the City of Durango. Defendant, who was the trolley's driver, commented to the victim that she was "a pretty young girl" and "you should have sex with me." When defendant and the vie-tim were the only people on the trolley, defendant stopped the trolley, moved to the back where the victim was located, and asked her to stand. After she stood, defendant held her against a window, started kissing her neck, placed his hand on her leg, and said "Damn it, take your pants off" As defendant held the victim with his right hand, he pulled her shirt up. The victim felt defendant's penis against her stomach and then felt something wet.

Defendant's defense at trial was that he did not engage in any of the alleged conduct.

I.

Defendant contends that the evidence was insufficient to support his conviction for attempted patronizing a prostituted child. We disagree.

We must determine whether, when taken as a whole and in the light most favorable to the prosecution, the evidence is sufficient to support a finding of guilt beyond a reasonable doubt on each conviction. In applying this standard, we must give the prosecution the benefit of every reasonable inference that might fairly be drawn from the evidence. Kogan v. People, 456 P.2d 945, 950 (Colo.1988).

As relevant here, a person "commits patronizing a prostituted child [when hel [engages in an act which is prostitution of a child." Section 18-7-406(1)(a), C.R.S.2002. Prostitution of a child is defined, in relevant part, as "inducing a child to perform or offer or agree to perform any act of sexual intercourse, fellatio, cunnilingus, masturbation, or anal intercourse with any person ... by coercion or by any threat or intimidation." Seetion 18-7-401(7), C.R.8.2002.

A person commits attempt when "acting with the kind of culpability otherwise required for commission of an offense, he engages in conduct constituting a substantial step toward the commission of the offense." Section 18-2-101(1), C.R.8.2002.

Here, when viewed in the light most favorable to the prosecution, the evidence establishes that defendant took a substantial step towards inducing the victim to perform an enumerated sexual act by coercion, threat, or intimidation. Defendant's conduct of holding the victim against the window of the trolley and telling her, "Damn it, take your pants off" is evidence of intimidation taken as a substantial step toward inducing the victim to perform a sexual act.

Defendant contends that the parts of the statute under which he was convicted were intended by the General Assembly to cover situations where a third party uses coercive tactics to encourage a child to engage in prostitution. Accordingly, defendant asserts that there is an implied element that he must have attempted to have the victim act as a "prostitute" and there is no evidence to support this element. However, because the elements of the violation of this statute are clear and unambiguous, we need not look to the legislative history to imply an element that it is not included in the statute. See Martin v. People, 27 P.3d $46 (Colo.2001)Gf statutory language is unambiguous, we need not apply additional rules of statutory construction to determine the statute's meaning).

Thus, we conclude that the evidence supports defendant's conviction of attempted patronizing a prostituted child.

IL.

Defendant contends that parts of § 18-7-401(7) are unconstitutionally vague. Additionally, defendant contends that because the offense of patronizing a prostituted child proscribes the same conduct as the offense of sexual assault in the third degree pursuant to Colo. Sess. Laws 1994, ch. 287, § 18-3-404(1.5) at 1717, and the penalties for the two offenses are different, his conviction violates equal protection. We decline to reach these constitutional arguments because they were not raised in the trial court. See People v. Cagle, T51 P.2d 614 (Colo.1988).

TIL.

Defendant contends that the use of an instruction defining a variety of third degree sexual assault different from the charged offense was an improper constructive amendment after the close of the evidence. We agree.

The relevant version of § 18-8-404(1.5) provided:

Any person who knowingly, with or without sexual contact, induces or coerces a child by any of the means set forth in 18-3-402 or 18-8-408 to expose intimate parts or to engage in any sexual contact, intrusion, or penetration with another person, for the purpose of the actor's own sexual gratification, commits sexual assault in the third-degree.

Defendant was charged with attempted third degree sexual assault under the portion of the statute that prohibits coercing or inducing a child "to expose intimate parts." However, the trial court instructed the jury based upon the portion of the statute that prohibits coercing or inducing a child "to engage in any sexual contact."

It is unconstitutional to require a defendant to answer a charge not contained in the charging instrument. Schmuck v. United States, 489 U.S. 705, 717, 109 S.Ct. 1443, 1451, 108 LEd.2d 7384 (1989)("It is ancient doctrine of both the common law and of our Constitution that a defendant cannot be held to answer a charge not contained in the indictment brought against him."); see also People v. Rodrigues, 914 P.2d 230 (Colo.1996).

Accordingly, variances between the crime charged and the crime instructed upon or convicted of that change an essential element of the charged offense and alter the substance of the charging instrument are considered unconstitutional constructive amendments to the information. People v. Rodriguez, supra; see also Crim. P. T(e) (information may only be amended as to substance "at any time prior to trial").

A constructive amendment after completion of the evidence is per se reversible error. People v. Foster, 971 P.2d 1082, 1087 (Colo.App.1998)("A variance that broadens an indictment constitutes a constructive amendment and is reversible per se."); see also United States v. Wright, 982 F.2d 868 (10th Cir.1991); People v. Rodrigues, supra.

Because the jury instruction for third degree sexual assault required proof of an alternative method of committing the crime not contemplated by the information, we conclude that this constructive amendment of the information is reversible per se. Accordingly, defendant's conviction for third degree sexual assault must be vacated and the case remanded for a new trial on that charge.

IV.

Defendant contends that the trial court erred in other instructions to the jury. We disagree.

Because defendant did not object to any of the contested instructions at trial, we review for plain error. Plain error is an error that is obvious, substantial, and grave and seriously affects the substantial rights of the accused. It has occurred when a court can conclude with fair assurance that the error so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction. Moore v. People, 925 P.2d 264, 269 (Colo.1996).

To obtain reversal under a plain error standard, a defendant must demonstrate not only that the jury instruction affected a substantial right, but also that the record reveals a reasonable possibility that the error contributed to his conviction. People v. Garcia, 28 P.3d 340 (Colo.2001).

A.

Because of our holding in part III, we need not reach defendant's argument that the instruction for third degree sexual assault was erroneous for failing to apply the mens rea of "knowingly" to every element.

B.

Defendant contends that the instruction for patronizing a prostituted child did not apply the mens rea of knowingly to every element and thus was plain error. We are not persuaded.

The trial court instructed the jury that "[the elements of the crime of Patronizing a Prostituted Child, are: (1) that the defendant ... (8) knowingly engaged in an act, (4) which was prostitution of a child under the age of 18 years." The trial court instructed the jury, in relevant part, that "prostitution of a child means inducing a child to perform or offer to perform any act of sexual intercourse, fellatio, cunnilingus, masturbation or anal intercourse with any person not the child's spouse by coercion or by threat or by intimidation."

Knowingly must be read to apply to every element. See People v. Coleby, 34 P.3d 422 (Colo.2001); § 18-1-508(4), C.R.8.2002.

Defendant argues that the instruction, which requires that the "act" of patronizing a prostituted child be knowingly committed, could lead the jury to conclude that knowingly applies only to the sexual act and not to the coercion, threat or intimidation. Essentially, defendant argues that the error may have occurred because the term "act" refers to both the entire offense of patronizing a prostituted child and the specific sexual act in the offense.

However, even assuming that the instruction could be so read, we still would conclude that no plain error occurred. The facts of the case do not suggest that the coercion, threat, or intimidation alleged was not knowingly done. Accordingly, defendant cannot demonstrate that such an error contributed to his conviction.

C.

Defendant contends the trial court committed plain error by failing to instruct the jury regarding the meaning of a "substantial step" for purposes of criminal attempt liability. We disagree.

We conclude that the absence of such an instruction was not plain error because defendant did not contest the issue at trial. Defendant did not argue that his conduct was not a substantial step towards commission of the offense. Instead, defendant argued that he did not engage in the conduct alleged. Accordingly, the failure to define "substantial step" did not contribute to his conviction.

D.

Defendant contends that the trial court committed plain error by applying the mens rea of knowingly to the offense of patronizing a prostituted child. We again disagree.

As § 18-7-401(7) defines prostitution of a child, the "coercion, threat, or intimidation [inducing the child's conduct] need not constitute an independent criminal offense and shall be determined solely through its intended or its actual effect upon the child." Defendant argues that the word "intended" incorporates a mental state of intentionally for the offense.

We decline to reach defendant's argument because the record leaves no reasonable doubt that defendant's intent was "coercion, threat or intimidation." Accordingly, we conclude that the trial court did not commit plain error here.

v.

Defendant contends the trial court erred in sentencing him to indeterminate sentences pursuant to the former § 16-13-8083, now codified as § 18-1.3-1004, C.R.S.2002. We agree in part.

A.

The People concede that the conviction for attempted third degree sexual assault is not subject to indeterminate sentencing. Only criminal attempts that are class 2, 3, or 4 felonies are subject to indeterminate sentencing, and attempted third degree sexual assault by force is a class 5 felony. If defendant is convicted upon remand, the trial court shall not sentence defendant to an indeterminate sentence for that offense.

B.

Defendant contends that in establishing indeterminate sentencing for criminal attempts, § 18-1.3-1008(5)(b), C.R.S.2002, refers to paragraph (a) of subsection 4 of that statute for a list of the sex offenses covered. Defendant asserts correctly that there is no paragraph (a) of subsection 4. However, we find no error.

Where possible, a statute should be interpreted to give effect to all its parts. People ex rel. Marks v. Dist. Court, 161 Colo. 14, 420 P.2d 286 (1966). We presume that the legislature intends a just and reasonable result when it enacts a statute, and we will not read a statute to provide an unreasonable or absurd result. People v. Drake, 983 P.2d 135 (Colo.App.1999). Furthermore, courts may correct evident errors in words or figures so as to give an act its manifest meaning. Capp v. People, 64 Colo. 58, 170 P. 399 (1917).

Here, the sex offenses are listed in paragraph (a) of subsection 5, and not subsection 4, as indicated by the statute. However, to read the statute as referring to a nonexistent section would render § 18-1.3-1003(5)(b) meaningless and would lead to an absurd result. Accordingly, we conclude that this designation to a nonexistent section is merely a typographical error that we may correct, and we conclude that § 18-1.3-1003(5)(b) should be read to refer to the sex offenses listed in § 18-1.3-1008(5)(a).

Defendant contends that such an interpretation is an unconstitutional retroactive expansion of a criminal statute. We disagree.

Judicial interpretations that are foreseeable and defensible in reference to the statute can be retroactively applied to a criminal defendant. See Bowie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964).

Here, the error was typographical, and our interpretation could be reasonably foreseen upon a reading of the statute. Accordingly, we conclude that the application of that interpretation to defendant is not unconstitutional.

VIL.

Defendant contends that the trial court erred in responding to the jury's questions regarding the offense of attempted patronizing of a prostituted child. We disagree.

Here, the court stated that the jury should re-read the questioned instruction, but provided no further elaboration. On the record, the prosecution and defense counsel agreed with the court's response.

Because defendant, through defense counsel, consented to this response, he cannot now assert it was error. See People v. Hendrickson, 45 P.3d 786, 793 (Colo.App.2001)("When a defendant expressly agrees to [a response to the jury], he or she is prevented from asserting error with respect to the response."). We conclude that if any error occurred, it was invited by defendant.

The judgment of conviction of attempted third degree sexual assault is reversed, and the case is remanded to the trial court for a new trial on that charge. The judgment is affirmed in all other respects.

WEBB and PIERCE , JJ., concur.


author: Judge GRAHAM.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Steve David GARCIA, Jr., Defendant-Appellant.
    No. 01CA2514.
    Colorado Court of Appeals, Div. IV.
    Aug. 14, 2003.
    Rehearing Denied Sept. 18, 2003.
    Certiorari Granted April 5, 2004.

      Ken Salazar, Attorney General, Patricia R. Van Horn, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Cynthia Camp, Deputy State Pub-lie Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge GRAHAM.

Defendant, Steve David Garcia, Jr., appeals the judgment of conviction entered upon a jury verdict finding him guilty of attempted second degree murder and first degree assault. We reverse and remand for a new trial.

On July 8, 1999, defendant's wife told him she wanted to end their marriage, and defendant moved out of the home. Their child's birthday was imminent, and the child invited defendant to her birthday party. Wife gave defendant a ride to the party, and, en route, the couple stopped for party supplies.

In anticipation of indulging in his daughter's birthday party sweets, defendant, a diabetic, had injected himself that morning with an abnormally large amount of insulin. Wife noticed that defendant was quiet, and she inquired whether he felt all right. Defendant responded that he was "fine."

As wife started to back out of a parking lot, defendant struck her on the head with a hammer. Injured, wife ran from the car, but defendant grabbed her and tried to push her back into the vehicle. She escaped and fled. A nearby shopkeeper told defendant to stop and leave the premises. Defendant drove away. Eventually, defendant caught up with his wife and ran over her.

Defendant was charged with first degree assault, domestic violence, attempted first degree murder, and two counts of mandatory sentence for violent crimes.

In pretrial proceedings, defendant sought to assert a defense of involuntary intoxication based upon his injection of insulin and a resulting condition of hypoglycemia, which occurred when defendant failed to eat. Defendant endorsed a proposed expert, an endocrinologist, to testify to the effects of hypoglycemia, to defendant's historic hypoglycemic condition, and to state his opinion that, in a state of hypoglycemia, defendant could not conform his conduct to the law.

The prosecutor moved to exelude the expert's testimony on the ground that it was a "temporary insanity defense." The court ruled that it was admissible only under a theory of impaired mental condition or insanity and that, in accordance with § 16-8-101.5, C.R.S8.2002, defendant was required to plead the defense of insanity. Defendant then pleaded insanity. A jury instruction was given on the insanity defense, but no instruction was requested or given concerning involuntary intoxication.

Defendant was convicted and sentenced to twenty years in the Department of Corrections plus five years of mandatory parole.

1.

Defendant contends that the trial court erred in precluding his involuntary intoxication defense and requiring him to plead to insanity. We agree.

A defense based upon mental defect or insanity must be affirmatively pleaded at arraignment, in part because it sets in motion a specific process by which the defendant is professionally evaluated. Section 16-8-108.5(1), (4), C.R.98.2002. However, there may be evidence of diminished capacity caused by intoxication, not based upon a mental defect, which establishes that the defendant was not capable of conforming his conduct to the requirements of the law, thus absolving him of responsibility for the act because he lacked the mens rea element of the crime. People v. Low, 782 P.2d 622 (Colo.1987).

Impairment through intoxication is not necessarily a mental defect or disease. Section 18-1-804(2), C.R.S.2002. Careful distinctions are drawn between self-induced intoxication and involuntary intoxication. Where intoxication is self-induced, the incapacity is avoidable, and based on the moral blame associated with awareness that an ingested substance will likely alter one's faculties, that person is barred from avoiding the mens rea element of a crime. Hendershott v. People, 658 P.2d 885 (Colo.1982). Indeed, the statutory scheme adopted by the General Assembly specifically excludes the use of self-induced intoxication as a defense to general intent crimes, including second degree murder. Sections 18-1-804(1), 18-3-103, C.R.8.2002.

In contrast, no moral culpability attaches to involuntary intoxication. The affirmative defense of involuntary intoxication insulates a person from criminal responsibility where the involuntary intoxication eliminates his capacity to conform his conduct to the law. It requires no special pleading requirements, People v. Low, supra, and is an affirmative defense protected by the "presumption of innocence and the constitutional requirement of prosecutorial proof of guilt beyond a reasonable doubt." Hendersholt v. People, supra, 658 P.2d at 391.

If there is any credible evidence to support the defense, the trial court must instruct the jury on the defense even if the supporting evidence consists of "highly improbable testimony by the defendant." Lybarger w. People, 807 P.2d 570, 579 (Colo.1991)(quoting People v. Fuller, 781 P.2d 647, 651 (Colo.1989)).

The issue of intoxication is for the jury. People v. White, 191 Colo. 858, 558 P.2d 68 (1976). Whether intoxication caused by an overdose of a prescription medicine is considered voluntary or involuntary depends upon whether the individual should have known that intoxication would ensue, which also is a question for the jury. People v. Turner, 680 P.2d 1290 (Colo.App.1983).

Here, defendant sought to introduce a well-regarded expert's testimony about the effects of diabetes and hypoglycemia in support of his defense of involuntary intoxication.

Prior to trial, defendant urged that expert testimony be allowed to show the effects of hypoglycemia on his ability to conform his conduct to the law. In their motion in li-mine, the People equated this testimony to a mental disease or defect or impaired mental condition. In response, defense counsel argued, "if the Court takes the position of the prosecution that this is really [an impaired mental condition or insanity defense], then anything that the defense ever raises to challenge the prosecution's element of mens rea becomes an insanity defense, and that cannot be." In a pretrial hearing, defense counsel argued "we don't agree that this evidence should fall under [the impaired mental condition] statute." Defense counsel also asserted a due process violation in having to assert a mental defect defense simply to present evidence of the effects of hypoglycemia on defendant's ability to conform his conduct. Nevertheless, the trial court required defendant to assert a mental defect defense pursuant to § 16-8-106, C.R.98.2002, or suffer the disallowance of his expert's testimony.

The People now suggest that by asserting the mental defect defense, in accordance with the court's order, and by not requesting an involuntary intoxication instruction, defendant waived and abandoned the affirmative defense of involuntary intoxication. In light of defense counsel's repeated pretrial requests to assert the defense without use of the mental defect statute, we deem this argument unavailing. Defense counsel merely complied with the court's order while preserving defendant's assertion of error.

Here, the facts tending to support a claim of involuntary intoxication are inconclusive. However, defendant was foreclosed from the possibility of presenting an instruction based upon even slight evidence. The parties should be free to argue evidence to allow the trier of fact to determine whether defendant was suffering from a hypoglycemic condition, whether that condition impaired his ability to conform his conduct, and whether the circumstances show that this condition was voluntarily induced. See People v. Turner, supra (it is the jury's function as fact finder to determine the weight and eredibility of the witnesses, common knowledge, and the implicit warning in the prescribed dosage). Therefore, the trial court erred in precluding this defense and in foreclosing defendant's ability to present this evidence.

The fact that defendant was able to present testimony from experts concerning hypoglycemia does not alter our analysis. The jury could view this evidence only in the context of a mental disease or defect rather than in the context of intoxication, which we view to be a temporary condition unrelated to mental disease. Hence, providing the jury with instructions based solely on insanity was "in derogation of the presumption of innocence" to which defendant was entitled. See Hendershott v. People, 653 P.2d at 391.

The trial court erred in forcing defendant to adopt an unnecessary defense and in foreclosing the defense of voluntary intoxication. On remand, defendant should be afforded an instruction on intoxication. See Lybarger v. People, supra.

IL.

We agree with defendant's contention that the trial court erred in ordering him to undergo a second psychiatric evaluation. While this issue may not arise on remand, we note that the trial court made no findings with respect to good cause for granting an additional examination.

A court may order a second examination only for good cause shown. Section 16-8-106(1). Although the standard is not an onerous one, there must be some basis, other than counsel's opinion, for showing that the first examination was inadequate or unfair. See Massey v. Dist. Court, 180 Colo. 359, 362, 506 P.2d 128, 129 (1978); see also People v. Palmer, 31 P.8d 868 (Colo.2001)(the defendant's argument that psychiatrists applied incorrect legal standard lacked merit and, therefore, no good cause shown).

In May 2000, the court found that the proposed testimony of defendant's expert en-doecrinologist placed defendant's mental condition in issue. Based on this ruling, the court ordered defendant to be evaluated for impaired mental condition. In August 2000, the expert evaluated defendant and concluded that defendant was "so diseased in mind at the time of the commission of the act as to be incapable of distinguishing right from wrong with respect to the act." Further, the expert found that "within a reasonable medical certainty, that [defendant] had a condition of mind, caused by mental disease, which prevented him from forming a culpable mental state which is an essential element of the crime charged."

The prosecution filed a motion to compel further psychiatric examination of defendant. The prosecution did not agree with the expert's opinion and stated that an observation period was an important part of a sanity examination, and the expert did not observe defendant before the exam. The prosecution also asserted that it had consulted with other experts who were "skeptical of [the defense expert's] diagnosis," and that these experts needed to speak with defendant to do their own evaluation before opining whether the defense expert's opinion was based in fact. Defendant objected to a second exam.

The court ordered a second psychiatric examination, performed by another doctor. This doctor found that defendant was sane at the time of the crime.

The trial court observed, without findings, that § 16-8-106(1), C.R.S$.2002, contemplated an additional evaluation, and the court granted the prosecution's request. The court did not articulate reasons to support a showing of good cause. Therefore, the trial court erred in ordering a second evaluation.

IIL

Defendant contends that the trial court erred in denying his request for a mistrial based on prosecutorial misconduct. We need only generally address this issue.

Defendant argues that the prosecution failed to disclose certain statements of a witness and made improper references during closing argument to defendant's silence.

First, we note that Colorado Rule of Professional Conduct 8.8(d) requires prosecutors to disclose constitutionally material exculpatory evidence in advance of any critical stage in the proceedings. This disclosure would include impeachment evidence. In re Attorney C, 47 P.8d 1167 (Colo.2002).

Additionally, although we do not approve of the prosecutor's closing comments, in light of the trial court's admonition to him at the first trial, we anticipate that closing argument at retrial will not contain any references to defendant's lack of testimony in the event he chooses not to testify.

The judgment is reversed, and the case is remanded to the trial court for further proceedings in accordance with this opinion.

Chief Judge DAVIDSON and Judge NIETO concur.


text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Benad ABIODUN, Defendant-Appellant.
    No. 02CA1484.
    Colorado Court of Appeals, Div. II.
    Aug. 28, 2003.
    Rehearing Denied Oct. 16, 2003.

    Certiorari Denied April 5, 2004.

      Ken Salazar, Attorney General, Jennifer M. Smith, Assistant Attorney General, Denver, Colorado, for Plaintif{f-Appellee.
    David S. Kaplan, Colorado State Public Defender, Keyonyu X O'Connell, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

       Webb, J., would grant.

   Opinion by

Judge NEY.

Defendant, Benad Abiodun, appeals the judgment of conviction entered upon jury verdicts finding him guilty of two counts of possession of a controlled substance and two counts of distribution of a controlled substance. He also appeals the sentence. We affirm in part and vacate in part.

On June 21, 2001, a confidential police informant went to defendant's home to purchase cocaine. Defendant left his home to obtain cocaine from his source and later returned with the cocaine. The informant left defendant's home with the cocaine shortly thereafter.

On June 27, 2001, the confidential informant arranged another controlled buy with defendant. Defendant again left his home to obtain cocaine from his source and, within a half hour of returning home, met the informant and completed the sale. Defendant was arrested and subsequently charged.

At trial, the jury found defendant guilty of all charges and specifically found that the amount of the controlled substance was between 25 grams and 450 grams or one ounce or was represented to be of such an amount.

I.

Defendant contends the trial court erred in imposing a mandatory sentence for the June 27 acts because there is insufficient evidence to support the jury's finding that he possessed and distributed at least twenty-five grams or one ounce of a schedule II controlled substance. We disagree.

A defendant must be sentenced to at least the minimum of the presumptive range if convicted of possessing or distributing "an amount that is or has been represented to be" at least 25 grams or one ounce, but less than 450 grams of a schedule II controlled substance. Section 18-18-405(8)(a)(I), C.R.9.2002.

The sole evidence in the record establishing the requisite amount is defendant's statement during interrogation after the arrest that he went to a store to sell "about an ounce of erack cocaine."

A.

The People contend that we need not review the sufficiency of the evidence of quantity because it is not a substantive element of the offense and the jury instructions clearly included the quantity as a fact that must be proved beyond a reasonable doubt. We disagree.

While the quantity is not a substantive element, it still must be proved beyond a reasonable doubt. See Whitaker v. People, 48 P.8d 555 (Colo.2002); People v. Martinez, 36 P.3d 201 (Colo.App.2001). Accordingly, notwithstanding the jury instructions, we must evaluate whether there is evidence in the record to support the jury's determination of this fact. See, eg., People v. Bueno, 188 Colo. 896, 584 P.2d 1196 (1975).

B.

Defendant contends that the legislature intended § 18-18-405(8)(a)(I) to cover only representations regarding the amount made during the criminal transaction. We disagree.

In construing a statute, our primary task is to ascertain and give effect to the intent of the General Assembly. To discern that intent, we look first to the language of the statute, giving words and phrases their plain and ordinary meaning. People v. Dist. Court, 718 P.2d 918 (Colo.1986).

If the statutory language unambiguously sets forth the legislative intent, we need look no further to determine the statute's meaning. However, if the language is ambiguous, then we may rely on other factors, such as legislative history, to determine the meaning of a statute. Martin v. People, 27 P.3d 846 (Colo.2001).

Here, the statutory language, "or has been represented to be," does not explicitly state whether the representations must be made at, during, or before the sale, or whether they may be made after the defendant's arrest. Therefore, we conclude that the language is ambiguous as to the timing of the relevant representations. Accordingly, we look to the legislative history to ascertain the intent of this section.

The legislative history indicates that the General Assembly intended to coordinate the penalties with the "level of involvement" of the offender. It sought to treat differently those who are engaged in a transaction for a critical level, such as an ounce, a pound, or a kilogram, which typically indicates the level of the defendant's involvement in the drug trafficking enterprise. The language at issue here was targeted at offenders who were involved as "ounce dealers," but sold an amount below twenty-five grams in an attempt either to cheat the purchaser or to avoid greater. penalties. Hearings on H.B. 97-1077 before the House Judiciary Committee, 61st General Assembly, First Session (Jan. 16, 1997)(testimony of Bob Grant, District Attorney for 17th Judicial District).

Accordingly, because the statute is intended to target offenders whose level of involvement was that of an "ounce dealer," and all representations regarding the amount are indicative of an offender's level of involvement in a transaction, we conclude that the legislature did not intend to limit representations to those made during the transaction. Instead, we construe the statute as covering all representations made by a defendant regarding the amount.

C.

In evaluating the sufficiency of the evidence to support this finding beyond a reasonable doubt, we must give the prosecution the benefit of every reasonable inference that might fairly be drawn from the evidence. Kogan v. People, 456 P.2d 945, 950 (Colo.1988).

Here, to establish the amount of cocaine, the prosecution relied on defendant's representation during interrogation after the arrest that he went to a store to sell "about an ounce of crack cocaine."

Based upon our interpretation of the statute, we conclude that this evidence supports the jury's finding that the amount of cocaine was represented to be an ounce. Accordingly, we conclude that the trial court did not err here in imposing the mandatory sentence.

II.

Defendant contends that the trial court erred by not merging his convictions for possession into his convictions for distribution. We agree.

Possession of a controlled substance has traditionally not been considered a lesser included offense of distribution of the controlled substance. People v. Bloom, 195 Colo. 246, 248, 577 P.2d 288, 290 (1978)(not lesser included because "possession and sale are directed at different sorts of eriminal conduct"); People v. Holcomb, 187 Colo. 371, 532 P.2d 45 (1975); see also People v. Thurman, 948 P.2d 69 (Colo.App.1997).

However, in Patton v. People, 35 P.8d 124 (Colo.2001), the supreme court concluded that the convictions for possessing a controlled substance and manufacturing a controlled substance merged because, under the facts of that case, the possession was incidental and necessary to manufacturing and the acts occurred as part of the same transaction and during the same time period. See also People v. Villapando, 984 P.2d 51 (Colo.1999) (convictions for possession and use must merge because no possible scenario exists where use of a controlled substance can occur without possession). Accordingly, we read Patton as requiring merger of convie-tions where the facts establish that the acts were committed during the same transaction and the same time period and the lesser offense was necessary and incidental to the greater.

Here, the record reflects that for both the June 21 and June 27 transactions, defendant acquired the controlled substances after contact by the informant and possessed them for the sole purpose of their distribution during the same time period and as part of one continuous transaction. Thus, the only evidence that defendant possessed controlled substances was that he acquired them from a third party for distribution to the informant. Accordingly, under the rationale of Patton, we conclude that the possession was incidental and necessary to the distribution, and the convictions for possession must merge with the convictions for distribution.

IIL.

Defendant contends that the prosecutor's questions regarding defendant's national origin constituted prosecutorial misconduct and require reversal of his convictions. We are not persuaded.

Because defendant did not assert in the trial court that the prosecutor's questions were prejudicial and required a new trial, we review for plain error. See People v. Avila, 944 P.2d 678 (Colo.App.1997). Under this review, we consider the alleged improper questioning in the context of the testimony as a whole and in light of the evidence, and we evaluate it under the standards for prosecu-torial misconduct. See People v. Ned, 923 P.2d 271 (Colo.App.1996).-

Prosecutorial misconduct will only rise to the level of plain error if it is "flagrantly, glaringly, or tremendously improper." People v. Vialpando, 804 P.2d 219, 224 (Colo.App.1990).

Here, in attempting to establish that defendant was not ignorant of American language and culture, the prosecutor asked him, "You are not a U.S. citizen, is that right?" The trial court sustained defense counsel's objection to this question based on relevance. The prosecutor then asked defendant about his level of education and the time he had lived in the United States.

Upon review of the record, we conclude that the information elicited was repetitive of that obtained on direct examination and was relevant to the issues at trial. Thus, the questioning was not prejudicial, flagrant, or glaringly or tremendously improper.

The judgment and sentence as to possession of a controlled substance are vacated. The judgment and sentence as to distribution of a controlled substance are affirmed.

Judge CASEBOLT and Judge WEBB concur.


author: Judge MARQUEZ.

text:
    In the Matter of the ESTATE OF Spicer Humphreys BREEDEN, a/k/a Spicer H. Breeden, a/k/a Spicer Breeden, Deceased Impartial, and Concerning Sydney Stone, as co-personal representative of the Estate of Breeden, Petitioner-Appellant and Cross-Appellee, v. Lawrence P. GELFOND, Respondent-Appellee and Cross-Appellant.
    No. 01CA1545.
    Colorado Court of Appeals, Div. III.
    Aug. 28, 2003.
    Rehearing Denied Oct. 9, 2003.
    Certiorari Denied March 22, 2004.

      Law Office of Larry A. Henning, Larry A. Henning, Denver, Colorado, for Petitioner-Appellant and Cross-Appellee.
    Gorsuch Kirgis LLP, Peter R. Nadel, Stephen M. Brainerd, Julie L. Rosen, Denver, Colorado, for Respondent-Appellee and Cross-Appellant.
   Opinion by

Judge MARQUEZ.

In this consolidated appeal, petitioner, Sydney Stone, appeals from a partial summary judgment, a judgment entered after an evidentiary hearing, and other orders issued by the probate court in favor of respondent, Lawrence P. Gelfond. Respondent cross-appeals the probate court's denial of his request for an award of attorney fees and costs. We affirm in part, reverse in part, and remand for further proceedings.

This action concerns the estate of Spicer Breeden, which has been in probate administration since 1996. Petitioner has previously filed appeals in this estate proceeding. See In re Estate of Breeden, (Colo.App. No. 01CA0571, Mar. 21, 2002)(not published pursuant to C.A.R. 85(F)); In re Estate of Breeden, (Colo.App. No. O1CA1744, Nov. 14, 2002)(not published pursuant to C.A.R. 85(F)); In re Estate of Breeden, (Colo.App. Nos. 01CA1006, 01CA2174 & 02CAO125, July 3, 2008)(not published pursuant to C.A.R. 35(f)).

At petitioner's request, respondent was appointed personal representative of the estate in June 1997. He served in this capacity until petitioner sought to have him replaced. His petition to withdraw was granted effective September 9, 1998.

Although respondent had filed a second interim accounting of the estate's assets in August 1998, he filed his final accounting in November 1998.

In April 1999, petitioner filed her surcharge petition against respondent as an interested person. The probate court granted a partial summary judgment denying petitioner's claims regarding improper sales of estate property, failure to pursue an insurance claim, and disposal of estate assets. The remaining issues were resolved during or following an evidentiary hearing.

I. Attorney Fees

We first address respondent's contention on cross-appeal that the probate court erred in holding that a retired personal representative is not entitled to recover legal fees and unreimbursed costs incurred in the successful defense against a surcharge action. In our view, such fees and costs are authorized under the relevant version of § 15-12-720, Colo. Sess. Laws 1978, ch. 451, § 158-3-720 at 1591.

Interpretation of a statute is a question of law, and an appellate court is not bound by the trial court's interpretation. In construing statutory provisions, our obligation is to give full effect to the legislative intent. If the legislative intent is conveyed by the commonly understood and accepted meaning of the statutory language, we look no further. Gorman v. Tucker, 961 P.2d 1126 (Colo.1998).

Section 15-12-720 then provided: "If any personal representative or person nominated as personal representative defends or prosecutes any proceeding in good faith, whether successful or not he is entitled to receive from the estate his necessary expenses and disbursements including reasonable attorneys' fees incurred." This provision appears in substantially the same form in § 15-12-720(1), C.R.8.2002.

Fees collectable under this section must necessarily be related to services rendered to benefit the estate. In re Estate of Painter, 671 P.2d 1331 (Colo.App.1983)

Here, although respondent prevailed on the merits, the probate court found no persuasive Colorado authority allowing it to award attorney fees to a retired fiduciary who successfully defends a surcharge action. Both the probate court's ruling and petitioner's argument on appeal are based on the fact that when the surcharge action was filed, respondent was no longer the personal representative. We do not read the statute so narrowly.

The statute provides that "any" personal representative may be reimbursed and does not distinguish between past or present personal representatives. Further, recovery is allowed for defending or prosecuting "any" proceeding, so long as it is done in good faith. See In re Estate of Phipps, TIB P.2d 412, 414 (Colo.App.1985)("The section is limited only by the requirements that the personal representative must have defended the proceeding in good faith and that the expenses incurred must have been necessary and reasonable to the administration of the estate.").

Our interpretation is supported by cases from other jurisdictions holding that retired personal representatives, trustees, or other fiduciaries should be allowed to recover legal fees arising out of their fiduciary service. See Morrison v. Watkins, 20 Kan.App.2d 411, 889 P.2d 140 (1995)(trustee entitled under statute to recover expenses necessarily incurred in successfully defending actions as trustee, even when expenses are incurred after trustee's termination); In re Estate of Stenson, 243 Mont. 17, 792 P.2d 1119 (1990)(fees for work done on behalf of former personal representative were recoverable under similar statute); In re Estate of Flaherty, 484 NW.2d 515 (N.D.1992)(no error in allowing former personal representative attorney fees for defending will contest).

Relying on In re Estate of Painter, supro; Proudfit v. Coons, 187 Colo. 858, 325 P.2d 2783 (1958); and In re Estate of Coors, 140 Colo. 348, 344 P.2d 184 (1959), petitioner contends that the "benefit rule" precludes respondent from recovering legal fees and unreimbursed costs incurred in the successful defense against a surcharge action. We disagree.

The benefit rule is a general rule that no allowance may be made out of a decedent's estate for the services of an attorney not employed by the personal representative of the estate, where the services were rendered for the sole benefit of an individual or group of individuals interested in the estate. See In re Estate of Coors, supro; In re Estate of Phipps, supra.

In Painter, supra, a division of this court applied the benefit rule to preclude the estate from paying counsel to represent the administrator of the estate and the estate's attorney. However, the division specifically determined that the issues litigated were not related to estate administration.

In Phipps, supra, the division noted that Tuckerman v. Currier, 54 Colo. 25, 129 P. 210 (1912), held that executors of a will are justified in incurring necessary and legitimate expenses in the defense of their appointments and their course of procedure in good faith when attacked while in office. See also Weidlich v. Comey, 267 F.2d 183, 134 (2d Cir.1959)("When the trustee's administration of the assets is unjustifiedly assailed it is a part of his duty to defend himself, for in so doing he is realizing the settlor's purpose."); In re Estate of Flaherty, supra (word "benefit" applies to every aspect of estate administration which sound judgment would approve). |

Here, respondent was the personal representative of the estate for over a year and was sued for work he performed in that capacity. Further, the probate court's findings indicate that respondent's work benefited the estate. Therefore, we conclude that respondent is entitled to necessary expenses, disbursements, and reasonable attorney fees incurred in defending this action.

II. Recusal

We reject petitioner's contention that the probate judge erred in failing to recuse herself. She asserts the judge became personally involved and evinced bias and enmity toward petitioner. Other divisions of this court in the three prior appeals have resolved this issue against petitioner, and we find no reason to depart from those decisions here.

III. Summary Judgment

We also reject petitioner's claims regarding the partial summary judgment.

Summary judgment is appropriate only when the pleadings and supporting documents demonstrate that no genuine issue exists as to any material fact and that the moving party is entitled to judgment as a matter of law. Vail/Arrowhead, Inc. v. Dist. Court, 954 P.2d 608 (Colo.1998). The moving party has the burden of establishing the lack of a triable factual issue, and all doubts as to the existence of such an issue must be resolved against the moving party. Vectra Bank v. Bank Western, 890 P.2d 259 (Colo.App.1995).

Once the moving party has met its initial burden, the burden shifts to the nonmoving party to establish that there is a triable issue of fact. AviComm, Inc. v. Colo. Pub. Utils. Comm'n, 955 P.2d 1028 (Colo.1998). A genuine issue of fact cannot be raised simply by means of argument by counsel. People in Interest of J.M.A., 808 P.2d 187 (Colo.1990); see Sullivan v. Davis, 172 Colo. 490, 474 P.2d 218 (1970).

A. Sale of Estate Assets

We are not persuaded by petitioner's contentions that the probate court should have examined the sale of personal property, including whether the auction was an appropriate venue and method to sell such property, and the sale of the Belearo property. Relying on § 15-12-7082), C.R.S.2002, respondent argues that a personal representative shall not be surcharged for acts of administration if the conduct in question was authorized at the time. We agree that § 15-12-708(2) applies, the record indicates respondent was authorized to sell the property, and therefore, summary judgment on these matters was proper.

Moreover, the petition to surcharge asserts that respondent "breached his duties by selling valuable items of tangible personal property belonging to the estate consisting of art work at an auction which was an improper and imprudent venue for the sale of such items." In support of his motion for summary judgment, respondent attached petitioner's deposition stating that her specific concern was that certain art works were not sold to individual collectors or through a gallery. In response to that motion, petitioner questioned the propriety of the sale, but provided no evidence that the sale of the art work through auction resulted in any loss to the estate.

And although petitioner now contends the Belearo property was sold for less than fair market value, her petition for surcharge does not mention the Belearo property, much less assert that the sale price was improper. Further, during her deposition, petitioner acknowledged that the Belearo house needed to be sold to pay creditors' claims. Nor does she provide this court with any references to the record to support her contention. See Westrac, Inc. v. Walker Field, 812 P.2d 714 (Colo. App.1991)(respondent did not designate any portion of the record supporting its claims; bare statements in brief cannot supply that which must appear from a certified record).

Consequently, these arguments by counsel do not raise a genuine issue of material fact, and the probate court did not err in not addressing them.

B. Insurance Claim

We also do not agree with petitioner's contention that the probate court should have examined respondent's failure to file insurance claims for damaged property.

Here, respondent's motion for summary judgment asserted that petitioner acknowledged through deposition that she had directed him, during the pendency of his petition to withdraw, to take no further steps in pursuit of an insurance claim for the damaged items. The deposition does not appear in the record on appeal.

In her response to the motion, petitioner disputed the interpretation of her deposition. However, on appeal she acknowledges that she eventually asked respondent to take no further efforts to submit an insurance claim. The probate court stated, "There appears to be no dispute in the pleadings the [petitioner] discouraged [respondent] from pursuing the insurance claim while he was personal representative." It further noted that petitioner had not presented any evidence that the claim was stale on the date respondent resigned. Thus, it concluded petitioner was estopped from asserting this claim.

Consequently, summary judgment on this issue was properly granted.

C. Discarded Estate Property

Petitioner's contention regarding the disposition of certain estate property also fails.

The probate court granted summary judgment to the extent that certain items were in petitioner's possession. We agree that, as a matter of law, petitioner failed to state a claim as to those items.

IV. Evidentiary Hearing Issues

We also perceive no error with respect to the issues resolved after the evidentiary hearing.

-It is for the trial court, as trier of fact, to determine the sufficiency, probative effect, and weight of the evidence and to assess the credibility of witnesses. Its findings will not be overturned on appeal unless they are so clearly erroneous as not to find support in the record. When the evidence is conflicting, a reviewing court may not substitute its conclusions for those of the trial court merely because there may be credible evidence supporting a different result. Oliver v. Amity Mut. Irrigation Co., 994 P.2d 495 (Colo.App.1999); see Silverberg v. Colantuno, 991 P.2d 280 (Colo.App.1998).

A. Inadequate Interest and Investments

Petitioner contends respondent breached his fiduciary duties by holding an average of $142,826.24 for sixteen months in a bank account earning 1.5% interest when a telephone call could have doubled the interest earned. We disagree.

Fiduciaries are governed by §§ 15-1-101 to 15-1.1-115, C.R.S8.2002. Whether a breach of a fiduciary duty has occurred is a question of fact. Silverberg v. Colantuno, supra.

Here, the probate court credited respondent's explanations for the investments as reasonable. The court also found that the bank accounts met the fiduciary standard for deposit of estate funds. The probate court's findings are supported by the record and will not be disturbed.

B. Sale of Art Work

We also reject petitioner's contention that the court's ruling regarding the sale of a piece of art evidences bias and plain error. Petitioner asserts that respondent sold a valuable sculpture at auction as miscellaneous property in a box of used automobile parts.

Considering the testimony of the auctioneer and his assistant, the probate court properly found no credible evidence that the sculpture was sold at the estate auction. It further noted that even if respondent had acted negligently, the claim should be denied because the person now in possession of the sculpture testified that he stands ready to deliver it to the estate without consideration. We find no error in these rulings.

C. Missing Property

We also disagree with petitioner's contention regarding allegedly missing property. The probate court provided petitioner with an opportunity to prove at trial that items of value were lost. After trial, the court properly denied petitioner's claim because she had presented no direct, credible evidence that respondent discarded items of value from the estate.

Additionally, petitioner's claim for missing jewelry was not raised before the probate court. Therefore, we will not otherwise address it here. See Estate of Stevenson v. Hollywood Bar & Cafe, Inc., 882 P.2d 718 (Colo.1992); Minto v. Lambert, 870 P.2d 572 (Colo.App.1998).

D. Excessive Fees for Tax Work

Petitioner's contention that the probate court erred in not surcharging respondent for excessive fees for tax returns also is not supported by the record.

The probate court found with record support that the tax work was either necessary to the estate or demanded by petitioner. It concluded that the fees appear reasonable based on time and amounts typical in the community. Further, it noted respondent's fees represented a substantial discount from his regular hourly rate. Thus, it concluded that the amount paid was not unreasonable.

Because these findings are supported by testimony of respondent's expert and the lack of evidence to the contrary, we perceive no error.

E. Self-Dealing

Petitioner asserts that purchases between respondent and his wife are voidable under § 15-12-718(1), C.R.S.2002. She argues that the probate court abused its discretion in not enforcing its order to return a Rolex watch upon refund of the amount paid and in not allowing the estate its fees and costs. We disagree.

Section 15-12-713(1) provides, in relevant part, that any sale to the spouse of the personal representative is voidable by any person interested in the estate, except one who has consented.

Here, respondent's wife is a co-owner of a company that purchased the Rolex watch from the auctioneer the day after the auction. Respondent approved the sale, but testified that he did not know who the buyer was at the time. The court ordered that the current co-representatives of the estate may, at their sole election, refund the estate or art gallery the purchase price of all or any one of the questioned items in exchange for the items. Petitioner provides no references to the record indicating that she exercised her option as one of the co-representatives to rescind the sale.

We conclude petitioner has failed to demonstrate any harm to the estate from respondent's actions.

V. Discovery

Petitioner next contends that when respondent and the auctioneer were unable to produce the estate auction records, the probate court erred in declining to require the auctioneer to produce secondary records. In a related claim, petitioner contends the court erred in quashing a subpoena of the auctioneer's bank records. We perceive no error.

The trial court is in the best position to balance the needs of the parties with the prejudicial impact of a discovery request. A discovery request involves the exercise of discretion by the trial court. Cherry Creek Sch. Dist. No. 5 v. Voelker, 859 P.2d 805 (Colo.1998).

Here, respondent presented evi-denee that certain records were lost or destroyed in a flood and could not be reproduced. The probate court was satisfied with the auctioneer's testimony and affidavit that he did not have and could not reconstruct mailing lists from before, during, and after the auction of estate property.

The court also noted that there was no evidence presented that a reconstruction by the bank of all of the auctioneer's banking records would reveal the names and addresses of purchasers of items at the auction and link those names to items from the estate. In considering the "extremely attenuated nature of the information sought and the substantial burden on the witness to create the list required," the court granted the motion to quash.

Finally, in the court's view, the pressure to discover on the eve of trial was inconsistent with the rules of discovery, and petitioner did not offer a sufficient reason for her failure to complete discovery in the allowed time.

We thus conclude the probate court did not abuse its discretion.

VI. Motions to Vacate or Continue Hearing

We also do not agree with petitioner's contention that the probate court erred in declining to continue the surcharge hearing scheduled for January 8, 2001.

Petitioner filed a motion to vacate that hearing on December 19, 2000. Petitioner's mother passed away on January 12, 2001. The motion to vacate addresses discovery and self-dealing issues, but does not mention petitioner's mother or any illness.

In a "Response to Verbal Motion to Vacate Hearing," respondent refers to a telephone hearing with the court on January 3, 2001, in which petitioner's counsel informed the court that petitioner would be unable to attend the January 8 hearing because of her mother's illness. The response also states the court indicated it would consider a written motion to vacate. The transcript of the January 8 hearing similarly reflects that the court would have entertained a written motion, but until one was filed, the court refused to delay the trial.

Petitioner also attempted to vacate a hearing scheduled for January 16, 2001, by filing an emergency motion a few minutes before the hearing. This motion informed the court that petitioner's mother had died and petitioner was out of town. On appeal, petitioner contends that because of court proceedings and the disbelief and insensitivity of the parties and the court, she did not see her mother before her death. In view of petitioner's failure to file a written motion to vacate in early January when the court invited her to do so, we perceive no abuse of discretion in its declining to continue the January 8 hearing.

VIL. Bill of Costs

We also reject petitioner's contention that the probate court erred in approving respondent's bill of costs under §§ 183-16-105 and 183-16-122, C.R.S.2002, for the surcharge hearing.

Section 13-17-202(1)(a)(ID), C.R.98.2003, provides that a defendant shall be awarded actual costs accruing after an offer of settlement is made and rejected if the plaintiff does not recover a final judgment in excess of the amount offered. In granting respondent's bill of costs, the probate court indicated that it had "taken as true the unrebutted allegation that a written settlement offer was made" to petitioner by respondent, in an amount exceeding petitioner's recovery in this case. Therefore, under § 13-17-202(1)(a)(II), respondent was entitled to his costs.

The list of expenses that may be awarded as costs under § 13-16-122 is illustrative and not exelusive. In general, absent a specific prohibition, the trial court has discretion over the award of costs. Cherry Creek Sch. Dist. No. 5 v. Voelker, supra.

Relying on Perkins v. Flatiron Structures Co., 849 P.2d 882 (Colo.App.1992), petitioner asserts that fees for an expert's assistant were not authorized. However, respondent here did not seek fees under § 13-33-102, C.R.S.2002, the statute at issue in Perkins. Nor does petitioner indicate how the $215 charge for the assistant was unreasonable.

Furthermore, if a party pays a monetary judgment, such an action may render an appeal from that judgment moot and rob the appellate court of jurisdiction because of a lack of a justiciable controversy. Potter v. State Farm Mut. Aut. Ins. Co., 21 P.8d $74 (Colo.App.2001). Here, the estate paid respondent in full and requested respondent to provide a satisfaction of judgment and record a certificate of satisfaction of judgment as conditions of cashing the check. The letter accompanying payment, signed by petitioner's co-personal representative, makes no reference to reserving issues for appeal, and petitioner does not explain why the payment and satisfaction of judgment do not preclude review. See Potter v. State Form Mut. Auto. Ins. Co., supra.

VIII. Execution

Petitioner's remaining contentions regarding the second accounting, entry of judgment, and order allowing execution are also unavailing.

The probate court noted petitioner's "vague and unfocused objection to 'the amounts charged " and gave her twenty days to file more specific objections, but petitioner did not do so. Further, because the judgment was voluntarily paid and execution never occurred, these issues are moot.

The judgment denying respondent's request for costs and attorney fees is reversed, and the case is remanded for proceedings to determine the amount, if any, of necessary expenses, disbursements, and reasonable attorney fees that respondent may be awarded. The remainder of the judgments and orders are affirmed.

Judge ROY and Judge DAILEY concur.