author: Justice COATS Justice MARTINEZ

text:
    The PEOPLE of the State of Colorado, Petitioner v. Randy Dean RIGGS, Respondent.
    No. 02SC543.
    Supreme Court of Colorado, En Banc.
    March 8, 2004.
    Rehearing Denied April 5, 2004.

      Ken Salazar, Attorney General, John T. Bryan, Assistant Attorney General, Criminal Justice Section, Appellate Division, Denver, Colorado, Attorney for Petitioner.
    David S. Kaplan, State Public Defender, Mark G. Walta, Deputy State Public Defender, Denver, Colorado, Attorney for Respondent.

       Justice MARTINEZ and Justice BENDER would grant the Petition.

   Justice COATS

delivered the Opinion of the Court.

The People sought review of the court of appeals' judgment in People v. Riggs, 68 P.3d 478 (Colo.App.2002), concerning the temporary removal of an insanity acquittee from the state hospital. The court of appeals reversed the district court's order rejecting the hospital staff's recommendation to permit the temporary removal of Randy Riggs from confinement for treatment and rehabilitation. In the absence of any express articulation of standards in the removal statute, the court of appeals held that the district court should have weighed the rehabilitative potential of removal against the potential danger to the community, giving due consideration to the decisions of the health care professionals, and it should have approved the recommendation unless the district attorney proved by a preponderance of the evidence that removal was unwarranted. Because the court of appeals erred in imposing this burden of proof on what is a matter of discretion for the district court, we reverse.

L.

In April 1981, the respondent, Randy D. Riggs strangled a woman and had sexual intercourse with her dead body. The following day he returned to her home and again had relations with her corpse. Riggs, then sixteen years old, was charged with first-degree murder. In 1982, a jury found him not guilty by reason of insanity, and he was committed to the Colorado Mental Health Institute in Pueblo (CMHIP), where he has remained ever since.

From 1990 through 1996, CMHIP gave notice on six different occasions that it intended to authorize temporary removal of Riggs for treatment and rehabilitation. On each occasion, the request for the approval of the district court was either denied or withdrawn by CMHIP. In June 1999, CMHIP again gave notice of its intent to authorize temporary physical removal of Riggs from the hospital for treatment and rehabilitative activities. It sought permission for Riggs to leave the premises in a supervised group and later, when Riggs' doctors thought it was appropriate and without further court order, for unsupervised leave. The ultimate goal of the treatment was the discharge of Riggs from CMHIP.

The district attorney filed an objection, as permitted by statute, and the court heard the objection At the hearing, two of Riggs treating physicians testified and offered supporting documentation for their medical and professional judgments that Riggs had reached a point in his treatment at which his continuing progress hinged on his transition into off-grounds supervised treatment. They testified that while Riggs would likely retain residual aspects of his antisocial personality disorder, they did not believe that he would pose a danger to himself or others.

Apart from the testimony of the physicians, the hearing consisted of cross-examination by the district attorney; production of letters from the victim's family; and an opportunity for Riggs to address the court and offer a report on his family therapy, a GED and various certificates of completion, and letters of recommendation. The district court took the matter under advisement.

In a lengthy written order, the district court denied the request for temporary removal. After recounting the events leading to the defendant's plea of not guilty by reason of insanity and his subsequent automatic commitment, as well as the history of his behavior and evaluations while confined from that time until the hearing, the district court found that the risk was far too great to permit Riggs to be away from the hospital unsupervised. The district court discounted the assurances and predictions of the hospital staff, in part because of their long-time asso-clation with Riggs and because of what it considered to be their desire to recognize the success of their treatment programs for him. Instead it chose to emphasize their agreement that he should not be left alone with any young women, despite his great desire to do so; his diagnosis, including sexual disorder with antisocial and narcissistic features; and the doctors' inability to know for sure if he was able to fool them.

Riggs appealed the district court's refusal to give its approval, and with one member of the panel dissenting, the court of appeals reversed. A majority of the court construed the statutory provisions for temporary removal to impose, implicitly, a burden on any party objecting to authorization for temporary removal to prove, by a preponderance of the evidence, that such removal was unwarranted. In addition to failing to reflect any recognition of this burden, the district court's order was also held deficient for failing to reflect a proper determination whether public safety could be ensured while achieving the therapeutic purpose of the release, and to weigh the rehabilitative potential of the temporary removal activities against the potential danger to the community based on the defendant's contact with the public, giving due consideration to the decisions of the health care professionals made in the exercise of their professional judgment. The court of appeals ordered the district court to consider on remand only evidence relevant to these considerations.

The district attorney petitioned this court for a writ of certiorari.

IL

A defendant who is acquitted of a crime by successfully asserting the defense of insanity must be committed to the custody of the Department of Human Services until he is found eligible for release. § 16-8-105(4), 6 C.R.S. (2002). The public safety is clearly identified as the governmental interest supporting this automatic commitment of criminal insanity acquittees. People v. Chavez, 629 P.2d 1040, 1052 (Colo.1981). The state has a legitimate interest in protecting the public from those who have previously engaged in overt criminal conduct but have been relieved of criminal responsibility by reason of legal insanity. Id.; see People v. Logan, 196 Colo. 573, 588 P.2d 870 (1979); People v. Howell, 196 Colo. 408, 586 P.2d 27 (1978).

The assertion of the insanity defense and the judicial determination implicit in the insanity adjudication-that the accused engaged in criminal conduct as a result of mental disease or a questionable state of legal sanity-place the legally insane defendant in a special class of persons posing an imminent danger to public safety were they to be immediately released from detention. Chavez, 629 P.2d at 1058. An insanity adjudication therefore results in a presumptive continuation of a state of mental incapacity, and corresponding danger to the public, until it is shown that sanity has been restored. Id. at 1048. According to the sanity provisions applicable at the time of Riggs' conduct, an insanity acquittee becomes eligible for release only when he no longer has a mental condition likely to cause him to be dangerous to himself or others, or to the community, in the reasonably foreseeable future. § 16-8-120(1).

Largely because of this presumptive continuation of a state of mental incapacity and danger to the public, imposing a burden on insanity acquittees to prove their eligibility for release has been upheld as justified under certain cireumstances. See Chavez, 629 P.2d at 1050. Currently, the statutory scheme requires the acquittee to prove his restoration to sanity by a preponderance of the evidence, once any evidence of his insanity is introduced. § 16-8-115(2). In contrast to a person who has been civilly committed, a defendant adjudicated criminally insane has demonstrated by his conduct, as in this case, a likely illness and corresponding danger more threatening to the safety of others. Chavez, 629 P.2d at 1054. The more stringent standards of release applicable to the criminally committed defendant reflect the increased risk to the public associated with the release decision and, as in the case of automatic commitment, those release standards are reasonably related to the state's interest in public safety. Id.; e.g., United States v. Ecker, 543 F.2d 178 (D.C.Cir.1976), cert. denied, 429 U.S. 1063, 97 S.Ct. 788, 50 L.Ed.2d 779 (1977); Logan, 196 Colo. 573, 588 P.2d 870 (1979); Howell, 196 Colo. 408, 586 P.2d 27 (1978); State v. Alto, 589 P.2d 402 (Alaska 1979); In re Lewis, 403 A.2d 1115 (Del.1979).

Even after a finding, whether by court or jury, that the acquittee has been restored to sanity (under the appropriate statutory standard) and therefore must be released, the general assembly accounts for the state's continued interest in public safety by granting to the committing court the discretion to impose conditions on the released acquittee. See § 16-8-115(8)(a). The decision whether to impose terms and conditions, and precisely which terms and conditions to impose, is solely for the court. People v. Giles, 192 Colo. 240, 247, 557 P.2d 408, 413 (1976). Without any specific showing or burden of proof, the statutory scheme grants the discretion to impose such terms and conditions as the court determines are in the best interests of the acquittee and the community. § 16-8-115@8)(a). And although those conditions cannot be punitive in nature, like criminal probationary conditions that are unrelated to the individual seeking release, see Campbell v. Dist. Court, 195 Colo. 304, 577 P.2d 1096 (1978), it is clearly proper to require an insanity acquittee to accept outpatient care or supervision. See Scheidt v. Meredith, 307 F.Supp. 68 (D.Colo.1970). A defendant who has been conditionally released remains, by statute, under the supervision of the Department of Human Services, subject to revocation and recommitment until the court orders his unconditional release. § 16-8-115(8)(b).

There is yet another circumstance in which the statutory scheme permits an insanity ac-quittee to leave the institution in which he has been confined. Despite not yet having established his eligibility for release, an insanity acquittee may nevertheless be temporarily removed from confinement for treatment and rehabilitation. § 16-8-118. In sharp contrast to the statutory provisions for release, see § 16-8-115(2), and for revocation of conditional release, see § 16-8-115.5(8), which specify legal standards and expressly allocate burdens of proof, the temporary removal provision merely requires an authorization by the chief officer of the institution that either draws no objection or has the approval of the court. § 16-8-118(1)(c).

Whenever his physicians propose to treat an acquittee outside the facility to which he has been confined, the statute requires written notice, by certified mail, to the court and the district attorney, at least 80 days before removal may be authorized. Although the statute permits such treatment without formal court approval when no objection is raised, upon objection of any kind the matter must be heard, and authorization for the acquittee's removal may not be granted without the court's approval. § 16-8-118(1)(a),(b),(c). From these provisions, the court of appeals found an intent on the part of the legislature, despite its expressed concern for public safety, to authorize removal of the acquittee into the community, without supervision when the doctors so prescribe, unless the original prosecuting officer can prove by a preponderance of the evidence that the risk of continued dangerousness is too great to be offset by the medical benefits of the treatment plan.

Procedurally, this juxtaposition of the burden, which is expressly imposed by the general assembly on insanity acquittees to justify their "release" by proving their restoration to sanity, flows (by this reasoning) from the statute's allowance of authorization by the chief officer of the institution, in the absence of any objection, and from the statute's requirement that there be a hearing "upon the objections," in the event there are any. Rather than merely eliminating the need for a formal court ruling where no interested party proposes to challenge the hospital's recommendation anyway, the scheme is understood by the court of appeals as transforming the objecting party into the movant, or petitioner, upon whom it then imposes the traditional burden of going forward with sufficient evidence to justify his motion or request. In this view, by permitting the hospital to act without formal court approval when nobody objects, the legislature intends to convert the objection to the hospital's recommendation into the motion at issue. Eliminating the need for judicial approval unless there is some objection, however, does not alter the fact that the acquittee, or the doctor on the aequit-tee's behalf, is still the party seeking to change the status quo of confinement, which is mandated by the continuing presumption of his dangerousness, nor is there anything to suggest any awareness by the legislature that by eliminating a needless proceeding, it might be shifting a burden to the state to justify continued confinement.

Similarly, the suggestion that unsupervised "removal" from confinement is a treatment decision, better left to doctors, and does not involve the same risk of danger to the public as "release," ignores practical realities. While "release" following an acquittee's restoration to sanity permits the imposition of terms and conditions designed to insure continuation of the acquittee's restored mental health, "removal" leaves the extent of the acquittee's supervision, if any, entirely to medical personnel. And while greater process may be required to revoke a "conditional release" than to return an acquittee from "removal for treatment or rehabilitation," a great deal of unsupervised time is not needed to commit the type of crimes already admitted by this acquittee. No matter how summary or abbreviated the process for return to confinement, the harm inflicted on the public during those unsupervised weeks, days, or hours cannot be undone. While the psychological benefits of unsupervised commingling with the community may be a medical decision, protection of the public is not. See United States v. Hinckley, 292 F.Supp.2d 125, 147 (D.D.C.2003) (citing United States v. Ecker, 543 F.2d at 190 for the proposition that unlike treatment, dangerousness is a question for the courts).

In light of the legislature's creation of a statutory scheme designed to protect the public safety by requiring automatic commitment of insanity acquittees; by conditioning release upon their ability to overcome the presumptive continuation of their mental incapacity; and by subjecting them even then to court-imposed release conditions, it is simply unrealistic to read into the requirement for court "approval," of any objected-to removal recommendation, a legislative intent that such approval must be granted unless the state can demonstrate that removal would be unwarranted. By the same token, however, neither does the statute suggest the imposition of any particular burden on ac-quittees to prove justification for removal.

Quite the contrary, by conditioning removal for rehabilitation, at least whenever there is not complete agreement about its propriety, on the "approval" of the court, the statutory language strongly implies that the decision is a matter of court discretion. The term "approval" itself implies knowledge and the exercise of discretion after knowledge. Black's Law Dictionary 102 (6th ed.1990) (citing McCarten v. Sanderson, 111 Mont. 407, 109 P.2d 1108, 1112 (1941)). It is generally held that requiring the approval of a distinct officer to validate the act of another, evidences a legislative intent that such officer be vested with the discretion to officially sanction or disapprove that act. Oahke Conservancy Subdistrict v. Janklow, 308 N.W.2d 559, 561 (S.D.1981) (citing Gustafson v. Wethersfield Tp. High School Dist. 191, 319 Ill.App. 255, 49 N.E.2d 311, 313 (1943)). The very act of 'approval' imports the act of passing judgment, the use of discretion, and the determination as a deduction therefrom unless limited by the context of the statute. Melton v. Cherokee Oil Gas Co., 67 Okla. 247, 170 P. 691, 697 (1917).

In its abstract sense, judicial discretion implies the absence of any settled legal standard that controls the controversy at hand. Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112, 1115 (Colo.1986). Judicial discretion therefore means that the court not bound to decide the issue one way another, but has the power to choose between two or more courses of action and is not bound in all cases to choose one over the other. Id.; People v. Milton, 732 P.2d 1199, 1207 (Colo.1987), see also R. Aldisert, The Judicial Process 704, 706 (2d ed.1996). Because there is no single correct answer, under any given set of facts, the outcome never predetermined by the failure of either party to shoulder a burden of persuasion, and review of the court's decision is limited to an inquiry into whether the court abused its discretion in making the choice that it did. Discretionary decisions will not be disturbed unless the court's action was manifestly arbitrary, unreasonable, or unfair. Milton, 732 P.2d at 1207.

While the temporary removal provisions may not specify particular factors upon which the court's approval should be based, the entire statutory scheme of automatic commitment and conditional release leaves no doubt that the court's overriding concern in dealing with the release of insanity aequittees must be one of public safety. Permitting the removal of an insanity acquittee from confinement without proper supervision, before he is able to satisfy the statutory prerequisites for release, arguably poses an even greater threat to public safety than release without adequate terms and conditions to prevent relapse. Although an insanity acquittee has a limited right to treatment, see Kort v. Carlson, 728 P.2d 143 (Colo.1986), he has no right to treatment outside the institution in which he has been placed, except with the approval of the court. Because the court is not itself granted the authority to impose conditions on such treatment, it must therefore satisfy itself that any proposal for removal for treatment and rehabilitation will be consistent with the safety of both the public and the acquittee, before granting its approval.

While Colorado's precise formula for "removal" of an insanity acquittee appears to be unique, several other jurisdictions with similar provisions for furlough or removal to less restrictive confinement have arrived at similar conclusions about the discretionary role of the courts. See, e.g., State v. Morris, 2 Neb.App. 887, 518 N.W.2d 664, 671 (1994) (where insanity acquittee seeks greater freedom while institutionalized, neither State nor ac-quittee has burden of proof, and court's discretionary decision will not be disturbed in absence of abuse of discretion); State v. Johnson, 32 Ohio St.3d 109, 512 N.E.2d 652, 655-56 (1987) (since acquittee is not being discharged from commitment and statute does not specifically require otherwise, no party bears burden of proof as to transfer of acquittee to less restrictive setting, a matter instead committed to sound discretion of court); cf. People v. Cross, 289 Ill.App.3d 876, 225 Ill.Dec. 660, 684 N.E.2d 135 (1997) (where recommendation of pass privileges constituted modification of acquittee's treatment plan rather than transfer to non-secure setting, discharge, or conditional release, burden of proof actually rested on acquittee).

It has long been noted that " '[plro-ceedings involving the care and treatment of the mentally ill are not strictly adversary proceedings'... Thus technical rules as to who has the burden of bringing relevant evidence to the attention of the court do not apply." United States v. Ecker, 543 F.2d 178, 192 (U.S.App.D.C.1977) (quoting Judge Bazelon from Bolton v. Harris, 395 F.2d 642, 653 (D.C.Cir.1968), in turn quoting from Lake v. Cameron, 364 F.2d 657, 661 (D.C.Cir.1966)(en banc)); see also People v. Dist. Court, 192 Colo. 225, 557 P.2d 414, (1976) (The nature of the proceeding into an inquiry into the mental condition of a defendant who has been committed under a plea of not guilty by reason of insanity, is not an adversary proceeding in the usual sense of a case which is controlled by the rules of civil procedure.). Especially where approval for a hospital-initiated treatment plan is at issue, proceedings have been held to be "truly investigatory," with "the district court, the hospital, the patient, and the government sharing an obligation to elucidate and explore all the relevant facts." See Ecker, 543 F.2d at 193; see also State v. Johnson, 512 N.E.2d at 653 (rather than any burden of proof, parties have duty to present relevant, competent evidence to aid the court). And while it may not be illogical for the hospital, as the proponent of the treatment plan, to go forward with evidence supporting its recommendation, matters concerning the order of evidence are extremely discretionary and do not imply any particular burden of proof. See Ecker, 543 F.2d at 193-94.

Under Colorado's statutory scheme, only the institution charged with custody of an acquittee may authorize his removal for treatment or rehabilitation. Because such removal can be authorized only with the agreement of the district attorney and the attorney of record for the defendant, or with the approval of the court, the institution, the district attorney, the acquittee, and the court are all necessarily concerned in the decision, which involves both the interests of the ac-quittee and the interests of the community. In the absence of any more express statement by the general assembly limiting the "approval" of the court, it must be considered, as the word implies, a matter of discretion, in which the parties, respectively, "share an obligation to elucidate and explore all the relevant facts." Id.

TIL.

Nothing in the record suggests arbitrariness or unreasonableness in either the way the proceedings were conducted or the manner in which the court exercised its discretion. The defendant went forward by agreement, and all parties were permitted to present their positions. The court refused to give its approval to the plan specifically because it could have permitted the insanity acquittee to leave the confines of the institution without supervision, at the sole discretion of his physicians and without any showing of restoration to sanity or any further approval by the court. The district court expressly declined to approve unsupervised removal from confinement because of the risk it found to the public and especially women, based on its review of the defendant's criminal acts as well as his behavior while in confinement.

The court did not abuse its discretion in emphasizing the uncertainties involved in predicting the insanity acquittee's future behavior and the seriousness of his misconduct in the past, rather than sharing the confidence of his doctors in his lack of dangerousness. The chief officer of the institution clearly failed to make any determination that Riggs no longer required hospitalization because he no longer suffered from an abnormal mental condition that was likely to make him dangerous, because such a determination would have necessarily precipitated a discharge hearing. See § 16-8-116. Similarly, there is no indication in the record that the hospital offered to modify the treatment plan to alleviate the court's concerns. The court merely exercised its discretion to deny the plan because it allowed for the removal of an unrestored insanity acquittee, who admitted committing the most serious of erimes, without supervision of any kind.

IV.

The judgment of the court of appeals is therefore reversed, and the matter is remanded for further proceedings consistent with this opinion.

Justice MARTINEZ dissents and Justice BENDER joins in the dissent.

Justice MARTINEZ

dissenting:

We granted certiorari in this case to address the following issue:

Whether the court of appeals erred in concluding that the objecting party, and not a criminal defendant found not guilty by reason of insanity, has the burden of proof in a hearing to determine whether a defendant is eligible for temporary release from the state hospital for treatment and rehabilitation activities.

The majority opinion neither resolves the question presented, nor provides any guidance to the parties and courts involved in hearings on temporary removal of a patient from an institution for treatment and rehabilitation. Because I find that the majority's interpretation of the statute is not functional, and because I do not believe the legislature intended such a result, I respectfully dissent. I would find that the burden of going forward and the burden of proof properly fall on the objecting party, not only because such an outcome comports with the statutory structure, but also because it is consistent with our previous decisions regarding the placement of burden. Therefore, because I agree with the court of appeals, I would affirm and remand for further proceedings.

I begin my discussion with a brief outline of the statute around which the dispute in this case is centered: section 16-8-118, 6 C.R.S. (2008), which governs temporary removal of a patient from an institution for treatment and rehabilitation. This section grants authority to the chief officer of the institute in which a patient has been committed to allow temporary removal of the patient for treatment and rehabilitation activities. § 16-8-118(1)(a). The statute requires that the chief officer notify both the committing court and the district attorney that he will authorize temporary removal for treatment and rehabilitation activities unless he receives written objection from either the district attorney or the patient. Id. Thus, absent objection by either the patient or the district attorney, authorization for removal proceeds at the discretion of the chief officer. Id. Only when the district attorney or the patient objects to the temporary removal does the committing court become involved; at that point the court is required to hold a hearing "upon the objections." § 16-8-118(1)(c). Removal is then conditioned on the eourt's approval following the hearing. Id.

As resolution of this case depends on the proper interpretation of this statute, I reiterate the rules of statutory interpretation that this court has laid out in innumerable cases before. When construing a statute, we seek to interpret it so that we give effect to the legislature's intent. Lagae v. Lackner, 996 P.2d 1281, 1284 (Colo.2000). We presume that the legislature intended a just and reasonable result. Id. Thus, we should consider the legislature's intent and the purpose behind the statute rather than adopting a "lit-eralist interpretation that leads to an absurd result." Id.

Section 16-8-118(1) vests authority in the chief officer of the hospital to allow temporary removal of a patient for treatment and rehabilitation. Originally, the statute gave this power to the committing court upon the written request of the executive director of the department of institutions. Ch. 44, § 39-8-118, 1972 Colo. Sess. Laws 225, 282. However, the General Assembly amended that section in 1973 and transferred to the chief officer of the institution the power to authorize the temporary removal of his patients, absent objection. Ch. 144, see. 1, § 89-8-118, 1978 Colo. Sess. Laws 501.

By granting authority to the chief officer, the General Assembly clearly presumed that the chief officer can appropriately weigh the various factors that go into a decision to allow temporary removal, including the patient's continued progress in his treatment and the risk to public safety. Thus, in all of the cases where the chief officer's decision is not challenged, the legislature has left the decision regarding temporary removal in the sole hands of the chief officer of the institution. § 16-8-118(1). This allocation of authority is also consistent with our previous decisions in which we stated that treatment decisions are best left in the hands of those providing treatment. People v. Gilliland, 769 P.2d 477, 483 (Colo.1989); Kort v. Carlson, 723 P.2d 143, 149 (Colo.1986).

From a practical perspective, when there is an objection, the authority to make this decision must shift because the chief officer of a hospital cannot hold a hearing, weigh evidence, and hear arguments. Thus, the authority to make this decision likely shifts not because the legislature no longer trusted the chief officer to make this decision, but because a court is better suited to hear and consider arguments from opposing sides.

Nonetheless, once an objection is made and a hearing scheduled, the first issue to arise is who must shoulder the burden of going forward. The statute does not explicitly state who has this burden. It states only that the court must hold a hearing "upon the objections." § 16-8-118(1)(c). As the hearing is "wpon the objections," and the objecting party presumably has information revealing why the chief officer's decision to allow temporary removal is flawed, the burden of going forward naturally should fall to the objecting party to present that evidence. Similarly, the objecting party is also better situated to assume the burden of proof.

The majority opinion states that the court has discretion to approve removal decisions and that the imposition of a burden is inconsistent with that discretion. The majority decision is not useful to the parties and courts involved in removal hearings. In every case where an objection is made, the court must hold a hearing. Under the majority opinion, the court will have to determine, in each case, which party will go forward. As a practical matter, the court will likely impose that burden on the objector as the objector possesses evidence which demonstrates why the chief officer's decision was inappropriate. The court cannot impose the burden on the institution, which is not a party to the action. Similarly, it does not make sense to impose the burden on the party supporting the chief officer's recommendation, if in fact one of the parties does support the recommendation, because that party will merely reiterate the reasons behind the chief officer's decision. Only by placing the burden on the objector will the court be able to address the issues raised in the objection as required by the statute: the hearing must be held "upon the objections." By refusing to impose a burden, the majority merely dodges the issue raised and arrives at a result that is impractical and may lead to confusion at scheduled hearings.

Furthermore, both the burden of going forward and the burden of proof generally rest on the moving party. "The test for determining which party has the affirmative, and therefore the burden of establishing a case, is found in the result of an inquiry as to which party would be successful if no evi-denee at all were given, the burden being of course on the adverse party." American Ins. Co. v. Naylor, 101 Colo. 34, 39, 70 P.2d 349, 352 (1987). Under this test, the burden in this case clearly must fall upon the objecting party; if that party did not present evidence in support of its objection, the chief officer's decision should prevail because that decision would stand had no objection been made.

I agree with the majority that public safety is an important concern both in cases of removal and release. Nonetheless, I do not agree that the General Assembly intended for the committing court to have complete discretion as to removal decisions merely upon the unsupported objection of a party.

Although the majority cites to other states for support, my review of statutes in other states was not particularly helpful. Dictated by very different statutory mandates, other state courts have made varying decisions about where the burden in a change of confinement hearing should be placed. Although other state cases may appear to lend support for the majority's opinion, upon closer examination, they illustrate only that courts are bound to interpret statutes consistent with legislative intent.

The Nebraska legislature, for example, has vested great authority in its courts to make rather involved decisions about a patient's treatment. See Neb.Rev.Stat. § 29-3702(2) (West 2004). Under the Nebraska scheme, upon a finding of dangerousness, the court orders the defendant to a treatment program. Id. Additionally, the court dictates the conditions of liberty and monitoring. Id. Personnel at the treatment facility must obey the court ordered conditions or face "the full contempt powers of the court." Id. Clearly, the statutory scheme gives the court the power to make decisions regarding the defendant's treatment and confinement.

Consequently, when faced with the question of whether the state was required to present clear and convincing evidence that the defendant remained dangerous in review hearings regarding conditions of confine ment, the Nebraska Court of Appeals held that the court had discretion. State v. Morvis, 2 Neb.App. 887, 518 N.W.2d 664, 668-69 (1994). The court stated that the statute did not specify a burden of proof regarding conditions of confinement but "clearly imposes on the court the burden to determine what freedom of movement outside the locked facility is consistent with the safety of the public." Id. at 669. Thus, the court held that neither the State nor the defendant had the burden of proof to demonstrate whether a change in freedom of movement is warrant, ed. Id. at 671. Rather, decisions regarding conditions of confinement were vested in the discretion of the trial court, consistent with the legislature's grant of authority to the courts. Id. Therefore, although Nebraska adopted the same holding as the majority proffers today, the Nebraska court did so under a dramatically different statutory scheme than Colorado's.

An Ohio case provides another example of a situation where temporary removal decisions were left to the trial court's discretion. See State v. Johnson, 32 Ohio St.3d 109, 512 N.E.2d 652 (1987). Again, however, the statutory scheme that was in place at the time of that decision granted the courts significant authority. At the time of Johnson, the Ohio statute regarding changes in confinement conditions required a hearing in all cases and required the trial court to approve all changes in confinement. Ohio Rev.Code Ann. § 2945.40 (West 1995). Therefore, the court in Johnson appropriately left discretion in the trial court. The statute was later superceded, however, as the legislature clearly felt that the burden should properly fall on the prosecutor to show, by clear and convine-ing evidence, why a patient should not be allowed greater freedoms. See 1996 Ohio Laws 258; Ohio Rev.Code Ann. § 2945.401 (West 2004); State v. Mahaffey, 140 Ohio App.3d 396, 747 N.E.2d 872, 875 (2000). Thus, although the original statute allowed room for the trial court's discretion, the legislature later decided that the burden should properly fall on the prosecutor.

Our statutory scheme is consistent with our previous pronouncements about the relationship between institutions and the courts. Temporary removal is a treatment mechanism. Just as it is the court's business to resolve disputes, it is for the patient's doctors, who report to the chief officer, to decide the best course of treatment for a patient. See Gilliland, 769 P.2d at 483; Kort, 723 P.2d at 149. Although removal implicates some of the same concerns as release in that a defendant participates in activities outside of the hospital, temporary removal for treatment activities is a far less drastic step than release from the institution altogether.

The majority incorrectly umps the removal and release provisions into one. However, the statutory framework for temporary removal stands in stark contrast to the procedures required for conditional or unconditional release from confinement. § 16-8-115, 6 C.R.S. (2008). In a case of release, the court must always hold a hearing. Id. If any evidence of insanity is introduced, the statute specifically states that the defendant bears the burden of proving, by a preponderance of the evidence, restoration of sanity. § 16-8-115(2)(a). The test for restoration of sanity for release is a dangerousness determination which requires that "the defendant has no abnormal mental condition which would be likely to cause him to be dangerous either to himself or to others or to the community in the reasonably foreseeable future." § 16-8-120(1), 6 C.R.S. (2003). The court, or a jury when requested, then determines whether the defendant is eligible for release. § 16-8-115(8)(a).

Although issues of public safety exist for the removal program, an exaggerated focus on these concerns disregards the legislative intent to permit treatment outside of the institution even though a patient may still suffer from "an abnormal mental condition" and thus be ineligible for release. The heightened serutiny by the court in cases of release, as compared to removal, makes sense when one considers the purposes behind the two sections. When a patient is being released from an institution, the court must insure that the patient is adequately rehabilitated and able to reintegrate into society. Temporary removal, on the other hand, is authorized when treatment within the confines of the institution is no longer helping the patient. Thus, according to doctors at the treating institution, temporary removal allows treatment outside the institution as a step toward rehabilitation and the ultimate goal of release. In this way, committed patients do not go from institutional confinement to release without any measures to insure that they can reintegrate into the outside world.

Furthermore, an exaggerated focus on public safety ignores the practical realities of both the patient's present confinement and the temporary removal program. First, granting temporary removal privileges to Riggs would not present as great of a step from the patient's present confinement as the majority implies. The doctors at the hospital testified that Riggs has already had unsupervised on-grounds privileges for more than four of the last six years. Riggs has never attempted to escape even though the grounds are not locked and a major street separates two parts of the campus. Consequently, temporary removal off the hospital grounds does not present a large step from the patient's present situation. Second, the temporary removal program is a controlled and gradual program to reintroduce patients into society. Doctors from the hospital testified that when temporary removal is granted, the program begins with supervised recreational and treatment activities. The patient continues to live and undergo treatment at the institution in which he is committed. Unsupervised temporary removal generally does not occur until the patient has responsibly exercised supervised removal for a period of six months to five years. Furthermore, both supervised and unsupervised removal privileges are subject to suspension or revocation. Thus, the temporary removal program provides the next step for patients like Riggs who have already demonstrated their ability to responsibly handle on-grounds privileges. It allows the hospital to maintain supervision and treatment while still providing the next step for patients to progress in their rehabilitation.

The General Assembly has differentiated between release and removal and has clearly given the institution in which the patient is committed more discretion in removal decisions. Thus, the General Assembly has trusted in the chief officer, and by extension the institution's doctors, to make appropriate decisions in removal cases in which there are no objections to removal. We must respect that trust. The General Assembly has stated that the committing court should hold a hearing only when there is an objection, and upon that objection. Therefore, it appears to me that the General Assembly intended for the objecting party to shoulder the burden to demonstrate why the chief officer's decision was incorrect.

Accordingly, I respectfully dissent. I would affirm the decision of the court of appeals.

I am authorized to say that Justice BENDER joins in this dissent.

      . One of the treating physicians for CMHIP testified that supervised off-grounds privileges allow the patient to leave the grounds to participate in recreational and treatment activities under the supervision of hospital staff and are subject to immediate revocation or suspension. Unsupervised off-grounds privileges may be granted after six months to five years of supervised off-grounds activity.

      . See § 16-8-118(1)(b), 6 C.R.S. (2002).

      . The chief officer of CMHIP was presumably, however, unable to determine that Riggs no longer "suffered from a mental disease or defect which (was) likely to cause him to be dangerous to himself, to others, or to the community in the reasonably foreseeable future," a determination that he would have been obliged to report to the court, statutorily precipitating: a hearing on Riggs' discharge. See § 16-8-116.

      . § 16-8118, 6 C.R.S. (2002).

      . But see State v. Mahaffey, 140 Ohio App.3d 396, 747 N.E.2d 872 (2000) (noting change in statute after Johnson ).

      . The statute outlines different tests depending on the date of the offense. This test applies to crimes committed on or after June 2, 1965, but before July 1, 1983. The offense in this case was committed in 1981.


source: Caselaw Access Project

author: Judge TAUBMAN.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Richard D. ROBBINS, Defendant-Appellant.
    No. 01CA0927.
    Colorado Court of Appeals, Div. V.
    April 10, 2003.
    Rehearing Denied July 17, 2003.
    Certiorari Granted April 12, 2004.

      Ken Salazar, Attorney General, Laurie A. Booras, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    James O0. Simpson, Denver, Colorado, for Defendant-Appellant.

       Justice HOBBS does not participate.

   Opinion by

Judge TAUBMAN.

Defendant, Richard D. Robbins, appeals the trial court's order denying his motion for postconviction relief pursuant to Crim. P. 35(c). We affirm.

Following a jury trial in 1958, defendant was convicted of first degree murder and sentenced to prison for a life term. His conviction was affirmed on appeal. Robbins v. People, 142 Colo. 254, 350 P.2d 818 (1960)(Robbins I ).

In April 1995, defendant filed a motion for postconviction relief pursuant to Crim. P. 35(c) alleging ineffective assistance of counsel. Although the People did not respond to defendant's motion, the trial court concluded that it was barred by the doctrine of laches and denied relief without conducting an evi-dentiary hearing.

«In People v. Robbins, (Colo.App. No. 95CA1566, Oct. 24, 1996)(not published pursuant to C.A.R. 85(Ff))(Robbins II ), a division of this court concluded that, because defendant was convicted of a class one felony, there was no limitations period for filing a motion for postconviction relief pursuant to § 16-5-402(1), C.R.S.2002. Nevertheless, the division concluded that the equitable doe-trine of laches could be invoked to bar a person convicted of a class one felony, such as defendant, from obtaining postconviction relief. As the division explained, laches is an affirmative defense which requires the asserting party to prove that it was prejudiced by the opposing party's unconscionable delay. See People v. Bravo, 692 P.2d 325, 326 (Colo.App.1984).

The Robbins II division further concluded that, although the trial court had a proper basis for invoking the doctrine of laches on its own motion, defendant was entitled to an opportunity to explain his delay and to rebut the trial court's determination that the prosecution had been prejudiced. Accordingly, the division remanded the case for further proceedings.

Upon remand, the trial court held an evidentiary hearing to determine the circumstances of defendant's delay and any prejudice to the prosecution. Based on the evidence introduced at that hearing, the trial court found that defendant had begun serving his sentence in- 1958, that he had been paroled three times beginning in 1972, and that each period of parole had culminated in a revocation, the last occurring in 1982. The trial court further found that although defendant could have pursued postconviction relief at any time including during any of the three times he was on parole, he instead waited until 1995, eight months after his trial counsel died.

The court found that the timing of defendant's postconviction motion, coming so soon after the death of his trial counsel, was "suspect." The trial court rejected defendant's assertion that his delay was attributable to mental impairments, specifically finding "unconvincing the testimony from family members about the defendant's learning disability, his being slow, and other possible mental defects." The trial court found that it was "unconscionable" for defendant not to have filed a postconviction motion until after he had repeatedly failed on parole. The trial court also found that defendant's lengthy delay had caused significant and irreparable prejudice to the prosecution because only trial counsel could have rebutted defendant's allegations of ineffective assistance of counsel. Accordingly, the court reaffirmed its previous determination that defendant's motion was barred by the doctrine of laches. This appeal followed.

I.

Defendant first argues that the doctrine of laches cannot be applied to a postconviction motion challenging a class one felony conviction because the limitations statute for post-conviction motions specifies that there is "no limit" in cases involving class one felonies. We disagree.

A.

As an initial matter, we reject the People's assertion that the division in Robbins II previously decided this question and thereby established the law of the case.

The pronouncement of an appellate court on an issue becomes the law of the case and is binding in subsequent appeals involving the same case. See People v. Roybal, 672 P.2d 1003, 1005-06 (Colo.1983).

In our view, Robbins II deferred final resolution of this legal question pending the trial court's factual redetermination of whether defendant's claim was barred by the doctrine of laches. In any event, because we agree with the conclusion of Robbins II, the law of the case doctrine does not prevent us from expanding upon the analysis there to provide precedential guidance concerning this issue.

B.

As relevant here, the limitations statute for postconviction challenges provides as follows:

Except as otherwise provided in subsection (2) of this section [detailing exceptions for motions challenging a court's jurisdiction and motions supported by a showing of justifiable excuse or excusable neglect], no person who has been convicted as an adult . under a criminal statute of this or any other state of the United States shall collaterally attack the validity of that convietion or adjudication unless such attack is commenced within the applicable time period, as provided in this subsection (1), following the date of said conviction ...:
All class 1 felonies: No limit
All other felonies: Three years....

Section 16-5-402(1).

Before this statute was enacted in 1981 and reenacted in a constitutional version in 1984, no Colorado statute limited the time in which a defendant could challenge the validity of a conviction. See People v. Fagerholm, 768 P.2d 689 (Colo.1989); People v. Germany, 674 P.2d 345 (Colo.1983). However, before the statute was enacted, the supreme court had made clear that the common law doctrine of laches could be asserted as a bar to a motion for postconviction relief. See People v. Arnold, 190 Colo. 193, 194, 544 P.2d 968, 969 (1976)("defendant is guilty of laches and is not entitled to post-conviction relief"); see-also People v. Salvador, 189 Colo. 181, 183, 539 P.2d 1273, 1274 (1975)(discussing, but not applying, the doctrine of laches to a postconviction motion). Thus, the question before us is whether the absence of a limitations period for class one felonies in § 16-5-402(1) signifies the General Assembly's intent to abrogate the common law doctrine of lach-es for that particular class of felonies. We discern no such intent.

A statute may not be interpreted to abrogate the common law unless such abrogation was clearly the intent of the General Assembly. Preston v. Dupont, 35 P.3d 433, 440 (Colo.2001).

Here, defendant essentially argues that by specifying in § 16-5-402(1) that there is "no limit" on the time for a postconviction challenge to class one felony conviction, the General Assembly intended to make class one felony convictions perpetually nonfinal and forever vulnerable to collateral attack, irrespective of how stale the underlying claims may have become or how great the prejudice to the prosecution may be. We conclude this was not the General Assembly's intent. See People v. Richards, 23 P.3d 1223 (Colo.App.2000)(courts must avoid statutory interpretations leading to absurd results).

A more reasonable explanation for the absence of a limitations period for class one felonies in § 16-5-402(1) is that the General Assembly determined it would be inappropriate to establish a fixed limitations period for the filing of postconviction motions in cases where defendants have been convicted of the most serious felonies and face the longest sentences. Such a legislative determination does not manifest a clear intent to deprive courts of their preexisting ability to apply the doctrine of laches to class one felony cases. Rather, under our analysis, trial courts, in the most serious eriminal cases, may continue to assess individually whether equitable considerations should preclude postconviction relief when a defendant has been convicted of a class one felony.

Accordingly, we conclude that the doctrine of laches is applicable to persons, such as defendant, convicted of class one felonies. Cf. People v. Wiedemer, 852 P.2d 424, 433 (Colo.1993)(appearing to accept that the doe-trine of laches continues to apply to postcon-viction motions subject to the limitations periods of § 16-5-402(1)).

IL.

Defendant next argues that the trial court erred in concluding that his motion was barred by the doctrine of laches. We disagree.

The weight and credibility to be given the testimony of witnesses in a Crim. P. 85(c) hearing are within the province of the trial court. If there is sufficient evidence in the record to support the court's findings, its ruling will not be disturbed on review. People v. Downey, 994 P.2d 452, 455 (Colo.App.1999), aff'd, 25 P.3d 1200 (Colo.2001).

The record supports the trial court's finding that defendant's delay of over thirty-five years in bringing a postconviction motion is unconscionable. We further conclude the record supports the trial court's finding that allowing defendant to pursue postconviction relief at this late date would be unfairly prejudicial to the prosecution because the attorney who is the subject of defendant's ineffective assistance allegations is now deceased. Accordingly, we uphold the trial court's application of the doctrine of laches as a bar to defendant's motion.

The order is affirmed.

Judge CASEBOLT and Judge NIETO concur.


author: Judge NEY.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David SUAZO, Defendant-Appellant.
    No. 01CA2342.
    Colorado Court of Appeals, Div. II.
    June 5, 2003.
    Rehearing Denied July 24, 2003.
    Certiorari Denied April 5, 2004.

      Ken Salazar, Attorney General, Jennifer M. Smith, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Jud Lohnes, Deputy State Public Defender, Denver, Colorado, for Defendant, Appellant.

       Justice KOURLIS and Justice COATS would grant as to the following issues:
      Whether the court of appeals construed CRE 803(2) too narrowly in determining that evidence was improperly admitted as an excited utterance, and, if the admission of the hearsay testimony was error, whether the court of appeals' analysis of harmless error was also too narrow under existing case law.
      Whether the court of appeals incorrectly relied on People v. Bossert, 722 P.2d 998 (Colo. 1986), to suggest that the model jury instruction for harassment-stalking was incorrect.

   Opinion by

Judge NEY.

Defendant, David Suazo, appeals the judgment of conviction entered on jury verdicts finding him guilty of obstructing a peace officer, first degree trespass, and harassment-stalking. We affirm in part, reverse in part, and remand for a new trial.

Defendant and the victim were involved in a relationship lasting approximately ten years, during which they had two children. In August 2000, defendant and the victim mutually decided to terminate the relationship.

On November 28, 2000, defendant called the vietim at her work place forty times to ask her to Iunch. During one phone call, defendant told the victim that he would kill her if she did not see him. After this phone call, defendant and the victim had several other contacts over a two-week period, which the victim described as "civil."

On December 14, 2000, as the victim arrived at her home, defendant ran up to her car, knocked on the window, and asked her to get out. The victim refused to leave the car and called the police from her mobile phone.

When the police arrived, defendant ran through the house and out the back door. After a brief chase, defendant was apprehended by police. Shortly after the apprehension, an officer interviewed the victim about her relationship with defendant.

I.

Defendant contends that the evidence is insufficient to support his conviction for harassment-stalking because the prosecution failed to prove that: (1) defendant made a credible threat; and (2) defendant's contact with the victim was in connection with the threat. 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. 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, 756 P.2d 945 (Colo.1988).

A.

We conclude that, in applying the appropriate standards, the evidence supports the conclusion that there was a credible threat.

A "credible threat" is "a threat, physical action, or repeated conduct that would cause a reasonable person to be in fear for the person's safety or the safety of his or her immediate family or of someone with whom the person has or has had a continuing relationship." Section 18-9-111(4)(c)(ID), C.R.S. 2002.

Here, defendant told the victim that he was going to kill her if she did not see him. When viewed in the light most favorable to the prosecution, this evidence is sufficient to support the finding that a credible threat was made.

B.

We also conclude that the evidence supports the conclusion that defendant's contact with the victim was in connection with this threat.

Conduct "in connection with" a credible threat includes "acts which further, advance, promote, or have a continuity of purpose, and may occur before, during, or after the credible threat." Section 18-9-111(4)(c)(I), C.R.S. 2002.

Here, defendant called the victim repeatedly on one day and threatened that he would kill her if she did not see him. Following this threat, defendant contacted the victim numerous times in person and by telephone and repeatedly asked to see her. Accordingly, when viewed in the light most favorable to the prosecution, a reasonable jury could conclude that these later contacts shared a continuity of purpose with the threat. Thus, we conclude that the evidence is sufficient to support the finding that the contact was made in connection with a eredi-ble threat.

IL

Defendant contends that the trial court erred in admitting certain testimony as an excited utterance and that this error was not harmless. We agree.

A.

A trial court's ruling on the admission of evidence is reviewed for an abuse of discretion. People v. Eppens, 979 P.2d 14 (Colo.1999).

To be admissible as an excited utterance, a statement must relate to a startling event or condition and be made while the declarant was under the stress of excitement caused by the event or condition. CRE 808(2); see also People v. Dement, 661 P.2d 675 (Colo.1983).

Here, an officer testified to the vie-tim's statements to him concerning her relationship with defendant and the effect that the alleged harassment had on her ability to work. After objection, the trial court admitted the statements as an excited utterance because the interview took place shortly after the startling event of defendant's arrest. However, the statements did not relate to that startling event and instead related to events that had occurred weeks previously. Thus, we conclude that the trial court abused its discretion in admitting this testimony as a excited utterance.

B.

We conclude that this error was not harmless.

We must examine the facts of the case to determine whether the error is harmless. People v. Griffin, 985 P.2d 15 (Colo.App.1998). An error is harmless if it does not substantially influence the verdict or affect the fairness of the trial proceedings. People v. Dore, 997 P.2d 1214 (Colo.App.1999).

Here, the only part of the hearsay testimony not cumulative of the victim's testimony was:

Q: And that question is: Did she indicate whether this [defendant's phone calls and alleged threat] had an effect on what she [was] able to do day to day during the two-week period? ...
A: She stated to me that it was affecting her day-her life on a daily basis, that she was intimidated and that she wasn't able to live a normal life due to the fear that she felt because of [defendant].

This testimony differs from the victim's testimony that she did not take defendant's threats seriously and that the contact between the two after the initial threat was civil. During closing argument, the prosecutor referred to the different versions of the incidents and asked the jury to conclude that the victim's statements as related by the officer were correct. Accordingly, this error cannot be considered harmless as to the harassment-stalking conviction. See People v. Martinez, 51 P.3d 1046 (Colo.App.2001)(when evidence is central to case and referred to in closing argument, admission is not harmless). This error, however, is harmless as to the convictions on obstructing a peace officer and first degree trespass because this evidence relates only to the harassment-stalking charge.

Accordingly, we conclude that the case must be remanded to the trial court for a new trial on the harassment-stalking charge.

IIL

Because it may arise on remand, we address defendant's contention that the jury instruction for harassment-stalking was erroneous. We agree that the instruction should be corrected on retrial.

When an objection was raised at trial, we review the trial court's instruction under a harmless error standard. People v. Garcia, 28 P.3d 340 (Colo.2001).

A person is guilty of harassment-stalking if the person "knowingly ... [mJakes a credible threat to another person and, in connection with such threat, repeatedly follows, approaches, contacts, or places under surveillance that person." Section 18-9-111(4)(b)(I), C.R.8.2002.

The trial court instructed the jury, over defendant's objection, that the elements of harassment-stalking are "1. That the defendant ... 3. Knowingly made a credible threat to [the victim], 4. And in connection with such threat, repeatedly followed, approached, or contacted [the vietim]."

Here, the statute requires that defendant both knowingly make a eredible threat and knowingly engage in conduct in connection with the threat. See People v. Bossert, 722 P.2d 998 (Colo.1986)("knowingly," when offset from other elements, modifies all sue-ceeding conduct elements in an instruction). However, the instruction given by the trial court did not specify that this mens rea of knowingly was required for conduct in connection with the threat. Accordingly, we conclude that the trial court erred here, and, on remand, the trial court should instruct the jury that defendant must knowingly engage in conduct taken in connection with the threat.

IV.

Defendant contends that the prosecutor's comments during closing argument deprived him of a fair trial. We disagree.

A.

Defendant first contends that the trial court erred in permitting, over objection, the prosecutor to improperly denigrate defense counsel during closing argument by referring to "lawyer tricks and tactics" and the strategies of defense attorneys. We are not persuaded.

A trial court's ruling on the seope of closing argument will not be disturbed absent a gross abuse of discretion resulting in prejudice and a denial of justice. People v. Holloway, 973 P.2d 721 (Colo.App.1998).

The prosecution is afforded wide latitude in replying to argument by opposing counsel. People v. Vialpando, 804 P.2d 219 (Colo.App.1990).

Here, during his closing argument, defense counsel introduced the concept of "lawyer tricks" to which the prosecutor referred in his rebuttal argument. Accordingly, while we do not approve of the prosecutor's comments, we do not conclude that they are so severe as to require reversal.

B.

Defendant next contends that certain comments by the prosecutor so prejudiced the jury as to deny him a fair trial. We again disagree.

The prosecutor offered both his personal opinion as to the veracity of the victim's statements and multiple potential rationales for her fabrication. The prosecutor also asked the jury to "send a message" to defendant.

If the prejudice created by a prosecutor's conduct is so great as to result in a miscarriage of justice, a new trial is warranted. Harris v. People, 888 P.2d 259 (Colo.1995).

However, when a trial court sustains defense counsel's objection, the potential for jury prejudice is significantly diminished. See People v. Griffith, 58 P.3d 1111 (Colo.App.2002).

Here, the trial court sustained defendant's objections and did not permit the prosecution to continue these particular lines of argument. Accordingly, while we again do not approve of these comments, we cannot conclude that they prejudiced the jury to the extent that would result in a miscarriage of justice.

The judgments of conviction on the charges of obstructing a peace officer and first degree trespass are affirmed. The judgment of conviction on the harassment stalking charge is reversed, and the case is remanded for a new trial on that charge.

Judge CASEBOLT and Judge WEBB, concur.


author: Judge MARQUEZ.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Bradley H. OGLETHORPE, Defendant-Appellant.
    No. 02CA0347.
    Colorado Court of Appeals, Div. III.
    June 19, 2003.
    As Modified on Denial of Rehearing Aug. 14, 2003.
    Certiorari Denied April 12, 2004.

      Ken Salazar, Attorney General, Matthew S. Holman, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Mark G. Walta, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

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

   Opinion by

Judge MARQUEZ.

Defendant, Bradley H. Oglethorpe, appeals the sentence imposed following his plea of guilty to one count of enticement of a child. He also appeals the trial court's order adopting the prosecution's response to his motion attacking the constitutionality of the Colorado Sex Offender Lifetime Supervision Act of 1998, § 18-1.3-1001, et seq., C.R.8.2002(Act). We affirm.

Defendant pleaded guilty to enticement of a child in violation of § 18-8-305(1), C.R.S. 2002, a class four felony. The trial court rejected his motion to refuse application of the Act on grounds that it was unconstitutional. It then found extraordinary aggravating cireumstances and sentenced him to the Department of Corrections to an indeterminate sentence of twelve years to life.

I. Findings

We reject defendant's contention that the trial court's wholesale adoption, without any analysis, of the prosecution's response to his motion attacking the constitutionality of the Act frustrates meaningful appellate review of the preserved constitutional issues presented by this case.

Although an appellate court may scrutinize findings when they have been adopted from those proposed by a litigant, the trial court's use of such findings is not erroneous if they are supported by competent evidence in the record. Rocky Mountain Health Maint. Org., Inc. v. Colo. Dep't of Health Care Policy & Fin., 54 P.3d 918 (Colo.

Here, we may assume that the trial court examined the proposed: findings and agreed that they correctly stated the facts as the court found them to be; otherwise, the court would not have adopted them. See Uptime Corp. v. Colo. Research Corp., 161 Colo. 87, 420 P.2d 232 (1966); Olson v. State Bd. for Omty. Colls. & Occupational Educ., 759 P.2d 829 (Colo.App.1988).

II. The Act

Defendant contends the Act is unconstitutional on several grounds, both as applied and on its face. We disagree.

Statutes are presumed to be constitutional, and a party challenging a statute's validity bears the burden of establishing unconstitutionality beyond a reasonable doubt. People v. Hickman, 988 P.2d 628 (Colo.1999).

A. Due Process

We reject defendant's contention that the Act violates procedural due process because it does not provide an opportunity to be heard on the facts justifying a sentence of up to the defendant's natural life and an adequate continuing opportunity to be heard after the indeterminate sentence is imposed.

1.

Procedural due process involves the manner in which state action occurs and requires notice and a fair opportunity to be heard. Due process is a flexible standard, which recognizes that not all situations calling for procedural safeguards require the same procedure. People v. Garlotte, 958 P.2d 469 (Colo.App.1997).

Relying on Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 826 (1967), and Apprendi v. New Jersey, 580 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), defendant argues that he has the right to proof beyond a reasonable doubt and a jury finding that he will likely reoffend. He asserts the General Assembly should not be allowed to presume that all sex offenders will reoffend and therefore require them all, indiscriminately, to serve indeterminate life sentences. We are not persuaded. |

In Specht v. Patterson, supra, the Supreme Court held that a 1968 Colorado sex offender statute violated due process because it did not give a defendant notice and an opportunity to be heard before the court made a finding justifying imposition of an indeterminate sentence. That statute applied if the court found that a defendant convicted of a specified sex offense, if at large, constituted a threat of bodily harm to members of the public or was an habitual offender and mentally ill.

The Supreme Court in Apprendi v. New Jersey, supra, held that any fact, other than the fact of a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum for that crime must be submitted to the jury and proved beyond a reasonable doubt.

Here, defendant pleaded guilty to a sex offense after being fully advised of the charge, his rights, and the potential sentences, and stating that he understood them. He was asked whether he had any questions and whether he admitted the charge. Defendant asked no questions and admitted his guilt, Thus, he was provided an opportunity to be heard on the sentence to be imposed.

Although defendant argues the Act relies on generalized legislative findings to justify indeterminate sentencing in all cases, subject to constitutional limitations it is the prerogative of the General Assembly to define erimes and prescribe punishments. Courts therefore exercise discretion in sentencing only to the extent permitted by statute. Martines v. People, 69 P.3d 1029, 2008 WL 21212123, (Colo.2008); People v. Black, 915 P.2d 1257 (Colo.1996). Here, the Act requires the court to give the offender an indeterminate sentence. See § 18-1.3-1004, C.R.S.2002; People v. Smith, 29 P.3d 8347 (Colo.App.2001). Further, as the People note, unlike the 1968 statute and Apprendi, no additional finding beyond the conviction was required before defendant was subject to indeterminate sentencing.

Additionally, defendant complains that the trial court did not afford him sufficient opportunity to develop the record regarding the alleged self-interest of evaluators and availability of treatment. However, he fails to point to any portion of the record indicating he sought such opportunity, and the record fails to show that he has been denied treatment.

Defendant nevertheless asserts that the Act fails to provide an adequate continuing opportunity to be heard on the issue of release after the sentence has been imposed. We reject this argument.

After the minimum period of incarceration imposed is completed, the parole board schedules a hearing to determine whether the sex offender may be released on parole. Section 18-1.3-1006(1)(a), C.R.S8.2002. Under that section, the parole board must determine, inter alia, "whether there is a strong and reasonable probability that the person will not thereafter violate the law." If parole is denied, the Act provides for review by the parole board at least once every three years. Section 18-1.83-1006(1)(c), C.R.8.2002. These opportunities satisfy continuing procedural due process requirements. See People v. Kibel, 701 P.2d 37 (Colo.1985){review after six months); Martines v. Colo. State Bd. of Parole, 989 P.2d 256 (Colo.App.1999){triennial review); Furnari v. Zavaras, 914 P.2d 508 (Colo.App.1996)

Moreover, defendant is not currently eligible for parole under the Act. Thus, these arguments are premature, and we will not consider them further. See People v. Kibel, supra; People v. Stream, 74 P.3d 387, 2002 WL 31719879 (Colo.App. No. 0O1CAO0685, Dec. 5, 2002).

2.

Asserting the Act violates his right to substantive due process, defendant further contends that not only does the Act presume every sex offender is dangerous and likely to reoffend, but it also denies the defendant any opportunity to prove otherwise. We do not agree.

Substantive due process prohibits the government from engaging in conduct that shocks the conscience or interferes with rights implicit in the concept of ordered liberty. It forbids the government from infringing upon certain fundamental liberty interests, no matter what process is afforded, unless the infringement is narrowly tailored to serve a compelling state interest. People v. Garlotte, supra.

However, when no fundamental right is implicated, the legislation is subject to evaluation for substantive due process purposes pursuant to the rational basis test. An adult offender has no fundamental liberty interest in freedom from incarceration. People v. Young, 859 P.2d 814 (Colo.1998); see People v. Stream, supra.

The rational basis test requires the state to demonstrate that the legislation bears some reasonable relationship to a legitimate governmental interest. People v. Young, supra.

Here, the General Assembly has found the majority of persons who commit sex offenses, if incarcerated or supervised without treatment, will continue to present a danger to the public when released from incarceration or supervision. It has declared that a program under which sex offenders may receive treatment and supervision for the rest of their lives, if necessary, is necessary for the safety, health, and welfare of the state. See § 18-1.3-1001, C.R.8.2002. Thus, the Act serves the legitimate governmental interests of protecting the public from untreated sex offenders and of rehabilitating and treating those offenders. See People v. Kibel, supra.

Consequently, the Act does not violate defendant's right to substantive due process.

B. Equal Protection

Nor do we agree with defendant's contention that the Act violates equal protection because it punishes all sex offenders, regardless of the conduct underlying the offense of conviction and even if they are nonviolent first-time offenders, more severely than persons who commit crimes with graver consequences, such as second degree murder or first degree assault.

The General Assembly is entitled to provide for more severe penalties for different crimes, so long as the classification of crimes reflects substantial differences in the proscribed conduct that have a reasonable relationship to the public purpose sought to be achieved. People v. Deskins, 927 P.2d 368 (Colo.1996); see People v. Black, supra.

The threshold question in any equal protection challenge is whether the persons allegedly subject to disparate treatment are in fact similarly situated. An equal protection challenge must fail if persons alleging disparate treatment are not similarly situated. People v. Black, supra. It is only when the same conduct is proscribed in two statutes, and different eriminal sanctions apply, that equal protection problems arise. People v. Young, supra.

Because defendant does not demonstrate that he was treated any differently from any other defendant convicted under similar cireumstances, he lacks standing to raise an equal protection argument. See People v. Fuller, 791 P.2d 702 (Colo.1990); People v. Smith, supra.

Even if we assume defendant has standing, sex offenders and nonsex offenders are subject to different parole laws and are not similarly situated for purposes of parole. See People v. Walker, T5 P.8d 722, 2002 WL 31477936 (Colo.App. No. 01CA2199, Nov. 7, 2002).

Thus, defendant is only similarly situated with defendants who commit the same or similar acts. See People v. Friesen, 45 P.3d 784 (Colo.App.2001); see also People v. Strean, supra (rejecting argument that nonviolent sex offenses were identical to those of a violent sex offender and that punishments were not the same).

C. Cruel and Unusual Punishment

Defendant further contends the Act violates the constitutional provisions against cruel and unusual punishment because the life sentence imposed in most cases will be disproportionate to the crime. We are not persuaded.

The constitutional prohibition against cruel and unusual punishment does not require strict proportionality between the crimes committed and the sentence imposed. Instead, it forbids only extreme sentences that are "grossly disproportionate" to the crime. People v. Mershon, 874 P.2d 1025 (Colo.1994); People v. Campbell, 58 P.3d 1080 (Colo.App.2002)(cert. granted Nov. 25, 2002).

When a defendant asserts that a sentence is grossly disproportionate to the crime committed, a proportionality review is undertaken. An abbreviated proportionality review, in which only the gravity of the crime and the sentence imposed are considered, is all that is required when the offense is a serious one. Great deference must be afforded to the General Assembly's authority to establish the punishments for crimes. People v. Mandez, 997 P.2d 1254 (Colo.App.1999).

Here, defendant argues only that his sentence is disproportionate when compared to class one felonies. However, defendant admitted sexually assaulting a four-year-old girl. He enticed her, along with her little brother, to leave the play area of their apartment complex and follow him to a secluded area where the assault took place. The trial court, in finding extraordinary aggravating cireumstances, noted the appalling nature of the crime. Testimony indicated the victim and her family were suffering lingering effects from the incident. Thus, we conclude defendant's sentence is not disproportionate to the offense.

In view of this disposition and because it would entail speculation, we need not determine whether a life sentence in other cases would be disproportionate to the erime.

D. Separation of Powers

Defendant next contends that the Act violates the separation of powers doctrine because criminal sentencing is a matter for the legislative and judicial branches, but the Act vests undue power in an executive body regarding the actual length of an offender's incarceration. Further, he argues the body that determines the actual length of an offender's sentence is not only a quasi-law enforcement agency, but also is uniquely subject to political pressures. We reject these contentions.

The separation of powers doctrine prohibits the exercise by one branch of government of the powers that the constitution vests in another branch of government. With respect to sentencing, the General Assembly has the inherent power to prescribe punishment for erimes and to limit the court's sentencing authority. The imposition of a sentence is a judicial function. Once a sentence is imposed, the executive branch is responsible for carrying out the court's mandate. People v. Barth, 981 P.2d 1102 (Colo.App.1999); see People v. Amaya, 894 P.2d 28 (Colo.App.1994).

The decision to grant parole or absolute release to an inmate incarcerated for an indeterminate sentence under the Act is vested within the sound discretion of the state parole board. See Christensen v. People, 869 P.2d 1256 (Colo.1994)(construing earlier version of the Act). The parole board's discretion is plenary and is not subject to judicial review. White v. People, 866 P.2d 18371 (Colo.1994).

To the extent defendant argues that the body that determines the length of his sentence is subject to political pressures, that argument was considered and rejected in People v. Stream, supra. ' We find that analysis persuasive and apply it here.

E. Privilege Against Self-Incrimination

We also are not persuaded by defendant's contention that the Act's requirement that offenders must demonstrate therapeutic progress before being considered for release to parole is nothing less than a legislative attempt to require that sex offenders not only admit guilt of the crimes of which they were convicted, but also disclose other potentially prosecutable misconduct. According to defendant, this requirement violates the constitutional privilege against self-inerimination.

We first note that defendant here pleaded guilty and admitted committing the offense. To that extent, any constitutional privilege against self-incrimination has been waived.

We also note that a similar argument was considered and rejected by the Supreme Court in McKune v. Lile, 586 U.S. 24, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002)(imprisoned defendant refused to participate in a sexual abuse treatment program on grounds that the required disclosures would violate his Fifth Amendment privileges against self-incrimination; refusal to participate would result in loss of certain privileges in prison and transfer to a maximum security unit).

Moreover, defendant does not contend that he has participated in treatment where he has been required to disclose other potentially prosecutable misconduct. Consequently, he does not have standing to assert this claim. See People v. Lybarger, 700 P.2d 910 (Colo.1985)(court should not decide constitutional issue until actually raised).

III. Sentence

Finally, defendant contends the trial court abused its discretion in imposing an indeterminate life sentence, the minimum term of which fell within the aggravated range for class four felonies. We are not persuaded.

Under § 18-1.3-401(1)(a)(V)(A), C.R.S. 2002, the presumptive range for a class four felony is two to six years imprisonment. Because defendant pled guilty to enticement of a child, a sex offense under § 18-1.3-1003(5)(a)(VII), C.R.S. 2002, he was subject to sentencing under § 18-1.3-1004 which requires the district court to sentence the offender for an indeterminate term of least the minimum of the presumptive range as specified in § 18-1.3-401 and a maximum of the sex offender's natural life.

Sentencing is discretionary, and to constitute an abuse of discretion, a sentence must be manifestly arbitrary, unreasonable, or unfair. Absent a showing that the court's wide latitude in sentencing was marred by a clear abuse of discretion, a sentencing decision will not be reversed on appeal. People v. Harding, 17 P.3d 183 (Colo.App.2000); see People v. Fuller, supra. The trial court is in the best position to fix a sentence that reflects a balance of the relevant considerations. On review, an appellate court must determine whether the sentence is consistent with the nature of the offense, the character of the offender, and the public interest in safety and deterrence. People v. Vigil, 718 P.2d 496 (Colo.1986).

Here, the sentence is consistent with defendant's plea bargain, his plea to enticement of a child, his admission of the underlying cireumstances supporting his plea, and the sentences available under the Act.

Defendant nevertheless contends the trial court imposed the sentence based on anger. We find no abuse of discretion.

During the sentencing hearing, the trial court described defendant's conduct as "shocking and horrific." In response to defendant's statement that "I'm not a bad person," the trial court stated: "You say you are not a bad person; that's not right, you are. You are the worst of people." It also concluded, despite the psychological report indicating defendant was a moderate to high risk, that defendant was "an exceedingly high risk to the rest of this community."

Because the sentence is supported by the record and authorized by the act, we perceive no abuse of discretion. See People v. Stream, supra. People v. Apodaca, 58 P.3d 1126 (Colo.App.2002); People v. Smith, supra.

The sentence and order are affirmed.

Judge ROY and Justice ERICKSON , concur.


text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Marcus PALMER, Defendant-Appellant.
    No. 01CA0937.
    Colorado Court of Appeals, Div. II.
    June 19, 2003.
    As Modified on Denial of Rehearing Sept. 4, 2003.
    Certiorari Denied April 12, 2004.

      Ken Salazar, Attorney General, John D. Seidel, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Ellen K. Eggleston, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

       Justice COATS does not particiapte.

   Opinion by

Judge NEY.

Defendant, Marcus Palmer, appeals the judgment of conviction entered on a jury verdict finding him guilty of second degree murder, felony murder, first degree burglary, and felony menacing. We affirm.

Defendant entered a home carrying a gun, which he intended to use to retrieve either money or drugs. An argument ensued, and defendant shot and killed one of the oceu-pants.

Defendant was originally charged with first degree murder, first degree felony murder, first degree burglary, and felony menacing. At defendant's request, the jury also was instructed on second degree murder, reckless manslaughter, and negligent homicide. The jury found defendant guilty of second degree murder, felony murder, first degree burglary, and felony menacing. The trial court merged the second degree murder and first degree burglary charges into the felony murder charge.

L.

The felony murder count in the information stated, inter alia, that defendant "unlawfully and feloniously, acting alone and with one and more persons, [did] commit and attempt to commit Burglary; and, in the course of and in furtherance of said crime that defendant was committing and attempting to commit, and in immediate flight therefrom, the death of a person other than one of the participants ... was caused."

Another count charged defendant with first degree burglary, outlined the elements of burglary, and identified its predicate crime, felony menacing. Defendant did not seek a bill of particulars or object to the completeness of the charges.

Defendant now contends that because the elements of burglary, including the intent to commit felony menacing, were not specified within the felony murder count, the information did not provide adequate notice of the predicate felony of burglary, and the trial court therefore lacked jurisdiction. We disagree.

An information must provide the defendant with sufficient notice of the charged offenses and factual cireumstances to allow adequate trial preparation and protect the defendant from subsequent prosecution for the same offense. People v. Pollard, 3 P.8d 473 (Colo.App.2000). However, it is not nee-essary to allege every element that must be proved at trial. People v. Richardson, 58 P.3d 1089 (Colo.App.2002).

An information may be deficient in substance or form. An information is substantively sufficient if it tracks the language of the pertinent statute. However, the failure to specify an underlying offense is a defect of form. A defect in form that was not objected to at trial, as here, nevertheless may render the conviction void if it results in substantial prejudice to a defendant. See People v. Auman, 67 P.8d 741 (Colo.App.2002)(cert. granted, Mar. 24, 2008); People v. Williams, 984 P.2d 56 (Colo.1999).

Contrary to defendant's contention, the information here charging felony murder was substantively sufficient and therefore conferred jurisdiction on the trial court. It specifically named the underlying offense, burglary, and otherwise tracked the felony murder statute. See § 18-8-102(1)(b), C.R.S.2002 (felony murder statute listing "burglary" as one of the predicate felonies); People v. Auman, supra (listing of predicate crime to felony murder as simply "burglary" not substantive error); People v. Williams, supra (in a burglary charge, failure to allege underlying offense is not substantive error).

Moreover, we reject defendant's contention that the information was insufficient as to form, resulting in prejudice to defendant. The information did not omit the predicate crime, but rather stated that the underlying offense was burglary. See People v. Williams, supra (defect in form where no underlying crime was specified). Defendant also has shown no prejudice. The elements of burglary, including the intent to commit felony menacing, were specified in the burglary count; thus, defendant was on notice of the complete basis for felony murder. See People v. Auman, supra (listing "burglary" as the predicate crime in felony murder count not prejudicial where other counts provided notice of burglary charges; court looks at context of other counts in determining prejudice); cf. People v. Steiner, 640 P.2d 250 (Colo. App.1981)(one count in an information may, by proper reference, incorporate the allegations more fully set forth in another count).

IL.

The jury was instructed on felony murder, with the predicate crime of burglary. A separate instruction specified the elements of burglary, including defendant's underlying intent to commit the crime of felony menae-ing, and referred to the felony menacing instruction. The felony menacing instruction listed the elements of felony menacing, but did not specify a particular victim.

Defendant contends that the failure to specify a victim in the felony menacing instruction permitted the jury to disagree on the intended victim and therefore render a nonunanimous verdict on the burglary charge and, consequently, the felony murder charge. We find no error.

The elements of first degree burglary are that a defendant "knowingly enters unlawfully, or remains unlawfully after a lawful or unlawful entry, in a building or occupied structure with intent to commit therein a crime," and that in the course of the burglary, "the person or another participant in the crime assaults or menaces any person." Section 18-4-202(1), C.R.S.2002; see § 18-4-203, C.R.S.2002 (second degree burglary has no actual assault or menacing element).

Here, defendant was separately convicted of felony menacing, and because the special verdict form specified the female occupant as the particular victim, in finding the defendant guilty of felony menacing, the jury must have unanimously agreed that defendant menaced the female occupant. Thus, the element of first degree burglary that a completed assault or menacing occur is not at issue here. Rather, the issue is whether the jury was required to agree on the intended victim of felony menacing, which it did.

The elements of burglary, as well as the elements of the underlying crime a defendant intended to commit must be correctly given to the jury, and the jury must unanimously agree that the defendant intended to commit the underlying crime. See People v. Archuleta, 180 Colo. 156, 508 P.2d 346 (1972). However, while the jury must unanimously agree on all elements of a crime, the jury is not required to unanimously agree on the evidence or theory by which a particular element is established. See People v. Hall 60 P.8d 728 (Colo.App.2002).

We conclude that, because the element of burglary here is the intent to commit a crime, the jury is not required to agree on the intended victim of the underlying menacing. To commit an actual crime, there must be a victim of that crime. However, a person can have the mental state of intent to commit a crime without having an identified specific victim. For instance, a defendant may break into a home with the intent to commit sexual assault, but not have an identified victim in mind; may have a particular victim in mind and yet complete the intended crime against a different victim; or may intend to commit the crime, but never actually complete the crime. In each of these instances, the element of burglary that defendant "intend to commit therein a crime" is met. See § 19-4-202(1)(first degree burglary); People v. Mandez, 997 P.2d 1254 (Colo.App.1999)(when underlying offense is theft in a prosecution for burglary, the prosecution has no burden to establish the particular item or items the perpetrators intended to steal).

Thus, while we agree with defendant that to convict him of burglary, the jury must agree on the underlying felony defendant intended to commit, see People v. Archuleta, supra, it does not follow that the jury must agree on the intended victim of the underlying crime of felony menacing. See § 18-3-206, C.R.8.2002 (person commits the crime of menacing if, by any threat or physical action, he or she knowingly places or attempts to place another person in fear of imminent serious bodily injury).

Consequently, here, the intent element of burglary may be satisfied by proof that defendant had the intent to menace any occupant of the premises. The jury could have differed on the evidence that satisfied the element of intent to commit felony menacing and yet decided unanimously that this element was met. See People v. Hall, supra. Because the jury could unanimously have found defendant guilty of burglary without agreeing on the intended victim of menacing, the resulting felony murder conviction, in this regard, was also unanimous.

ITIL

Defendant contends that the court committed reversible error by refusing to give defendant's tendered self-defense instructions. Specifically, defendant contends that the instruction given misled the jury and that the jury should also have been given an amplified self-defense instruction and an instruction stating that self-defense can be considered in determining whether defendant acted recklessly or negligently. We disagree that reversal is required, because any errors regarding the self-defense instructions were harmless. ~

First, we disagree with defendant that the self-defense instruction given to the jury requires reversal. This instruction related to the first degree and second degree murder charges. The jury acquitted defendant of the first degree murder charge and found him guilty of second degree murder and felony murder. However, the trial court subsequently merged the second degree murder charge into the felony murder charge. Thus, the only murder charge remaining was felony murder, to which self-defense does not apply, and, as a result, any error in the self-defense instruction as given was harmless. See People v. Renaud, 942 P.2d 1258 (Colo.App.1996)(self-defense may be available as an affirmative defense to a predicate felony but not as to the resulting death); see also People v. Rodrigues, 914 P.2d 2830 (Colo.1996)(trial court's failure to instruct on attempt was harmless error, as jury specifically found defendant guilty of first degree murder after deliberation); Hughes v. People, 175 Colo. 351, 487 P.2d 810 (1971)(alleged instructional error not subject to review where requested instructions went only to the question of the charge of burglary, and the defendant was acquitted of that charge).

For the same reason, we also reject defendant's contention that reversal is required because the court did not give the jury his requested amplified self-defense instruction. An amplified instruction would not have been relevant to the felony murder conviction. See Hughes v. People, supra; People v. Re-noaud, supra.

Lastly, we reject defendant's contention that reversal is required because the court refused to instruct the jury to consider evidence of self-defense when determining whether defendant acted recklessly or negligently.

At trial, defendant requested and the jury received instructions on second degree murder and the lesser offenses of reckless manslaughter and criminally negligent homicide. However, the court rejected defendant's tendered instruction that self-defense was not a defense to the crimes of reckless manslaughter or negligent homicide, but that the jury may consider evidence that defendant acted in self-defense to determine whether he committed those crimes.

Even if the failure to give the instruction was in error, such error did not contribute to defendant's convictions and was therefore harmless. As discussed, the trial court merged the second degree murder conviction into the felony murder conviction. Had defendant, in the alternative, been convicted of reckless or negligent homicide, such convictions would also have merged into the felony murder conviction. See People v. Jones, 990 P.2d 1098 (Colo.App.1999){reckless manslaughter merges into felony murder).

Judgment affirmed.

Judge CASEBOLT and Judge WEBB concur.