author: Judge VOGT.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff-Appellant, v. Christina E. KASTNER, Defendant-Appellee.
    No. 01CA0403.
    Colorado Court of Appeals, Div. IV.
    March 14, 2002.
    Certiorari Granted Oct. 21, 2002.

      Farry and Cain, LLP., Craig W. Cain, Joan Elaine Burtzos, Colorado Springs, Colorado, for Plaintiff-Appellant.
    Tracy Pride Stoneman, P.C., Tracy Pride Stoneman, Westcliffe, Colorado; Robert S. Kayser, Colorado Springs, Colorado, for Defendant-Appellee.
   Opinion by

Judge VOGT.

In this declaratory judgment action to determine whether an automobile insurance policy afforded coverage for injuries arising out of a sexual assault committed in a car, plaintiff, State Farm Mutual Automobile Insurance Company, appeals from the judgment entered in favor of defendant, Christina E. Kastner. We affirm.

According to the parties' stipulation of facts, defendant had walked to her car in a shopping mall parking lot and was standing between the open car door and the car when a man approached and asked for directions. As defendant was replying, the man came toward her with a knife, took her keys, and ordered her into the passenger seat. The man instructed defendant to lean the seat back and get down as far as possible. He then drove her to an isolated area where he robbed her and told her to disrobe. Defendant opened the door in an attempt to escape but was restrained by the automatic seatbelt. The man then sexually assaulted her at knife point. Afterwards, he drove to a parking lot where he left defendant in her car, threatening to harm her and her children if she reported the incident to anyone.

Defendant filed a claim for benefits under the personal injury protection (PIP) and uninsured/underinsured motorist (UM/UIM) provisions of her State Farm automobile insurance policy. State Farm denied the claim and brought this declaratory judgment action, seeking a determination that the policy provided no coverage for defendant's injuries.

The parties stipulated to the facts summarized above and filed eross-motions for summary judgment. The trial court granted defendant's motion, finding that her assault, related treatment bills and other claims arose out of use of the insured vehicle.

I.

On appeal, State Farm contends that, because defendant's injuries did not arise from the use of her car, her' claims were not covered under its policy and the trial court erred in concluding to the contrary. We disagree.

We review a summary judgment de novo, applying the same standards that govern the trial court's determination. Churchey v. Adolph Coors Co., 759 P.24 1336 (Colo.1988). Where, as here, the facts are undisputed, the sole issue is whether the moving party was entitled to judgment as a matter of law. See C.R.C.P. 56(c);, Nikolai v. Farmers Alliance Mut. Ins. Co., 830 P.2d 1070 (Colo.App.1991).

A.

The PIP provision in defendant's insurance policy states:

We will pay in accordance with the No Foult Act for bodily injury to an insured, caused by an accident resulting from the use or operation of a motor vehicle.

(Italies in original.) The Colorado Auto Accident Reparations Act (No Fault Act) to which this provision refers mandates PIP coverage for expenses and losses "arising out of the use or operation of a motor vehicle." Section 10-4-706(1)(b)(I), C.R.9.2001.

The policy's UM/UIM provision states:

We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury must be caused by accident arising out of the operation, maintenance or use of an uninsured motor vehicle.

(Italics in original.) See § 10-4-609(1)(a), C.R.S.2001 (addressing uninsured motorist coverage for losses "arising out of the ownership, maintenance, or use of a motor vehicle").

B.

Whether coverage is available under either the PIP or UM/UIM provisions depends on whether defendant's injuries arose from the "use" of her car. See Cung La v. State Farm Auto. Ins. Co., 830 P.2d 1007 (Colo.1992) (word "use" in uninsured motorist provision has same meaning as in general liability coverages).

The Colorado Supreme Court has interpreted "use" broadly in automobile insurance coverage cases. For example, there is no requirement that the vehicle be moving at the time of the accident. Aetna Cas. & Sur. Co. v. McMichael, 906 P.2d 92 (Colo.1995) (injuries to plaintiff, who was struck by oncoming car while working on highway, arose out of his use of his truck as a barricade and warning device); see also Kohl v. Union Ins. Co., 731 P.2d 134 (Colo.1986) (injuries resulting from discharge of rifle while insured was removing it from vehicle's gun rack aroge out of insured's use of his vehicle to transport hunters and weapons).

However, there still must be some causal relationship between the claimant's injuries and the use of the insured vehicle. Requiring such a nexus ensures that the accident is within the kind of risks that the automobile insurance contract was meant to cover. Aetna Cas. & Sur. Co. v. McMichael, supra.

The causation test does not require that the insured vehicle itself be the source of the injury, but only that its use be integrally related to the claimant's activities and the injury at the time of the accident. Under this test, the insured need show only that the injury originated in, grew out of, or flowed from a use of a vehicle. Aetna Cas. & Sur. Co. v. McMichael, supra; Bredemeier v. Farmers Ins. Exch., 950 P.2d 616 (Colo.App.1997).

The supreme court has declined to find a causal nexus where the only relationship between the injury and the vehicle was that the injury coincidentally occurred in the vehicle. See Azar v. Employers Cas. Co., 178 Colo. 58, 495 P.2d 554 (1972)(injury to passenger when copassenger's shotgun accidentally discharged did not arise out of use of vehicle; there was no contention that vehicle in any way contributed to discharge of firearm, and its only relationship to accident was presence of tortfeasor and injured person in it when injuries were inflicted); Mason v. Celina Mut. Ins. Co., 161 Colo. 442, 423 P.2d 24 (1967) (death occurring from discharge of pistol while three youths were toying with it in insured's car did not arise out of use of car). In McMichael, the supreme court noted that, in those cases, the injury could have occurred in any location and had no connection to the use of the vehicle.

State Farm argues that, as in Mason and Azar, defendant's car was simply the situs for the assault that caused her injury. However, as the trial court recognized, there was a factual nexus between the car and the assault in this case beyond the mere fact that the car was the situs of the assault. Specifically, the trial court found that the assailant's "selection of [defendant] after the vehicle door was opened, the use of the reclining passenger seat to prevent [defendant] from signaling for help, the use of the vehicle to get to an isolated area and the use of the automatic seat belts as restraints collectively constitute a causal connection between this vehicle and the assault."

Like the trial court, we conclude that these facts, viewed as a whole, established a causal connection between the car and the assault sufficient to support a finding that defendant's injuries arose out of the use of her car. See Aetna Cas. & Sur. Co. v. McMichael, supra (in determining whether injuries arose from the use of a vehicle for purposes of insurance coverage, court must look to particular factual cireumstances in the case before it}; Trujillo v. Farmers Ins. Exch., 862 P.2d 962 (Colo.App.1993) (sufficiency of causal relationship can be determined only by considering particular facts surrounding incident that caused injury).

We do not agree with State Farm that such a causal relationship cannot be established because use of a car to facilitate a sexual assault is "foreign to its inherent purpose." See Kohl v. Union Ins. Co., supra, 731 P.2d at 135. In Cung La, supra, the supreme court concluded that there was a material question of fact as to whether gunshot wounds suffered by the petitioner in a highway shooting incident arose out of the assailant's use of an uninsured motor vehicle to help box in the petitioner's car in order to shoot him. Although the court in Cung Lo cited the language from Kohli regarding use of a vehicle in a manner "not foreign to its inherent purpose," it did not suggest that the fact that the assailant was using his car to commit a crime would preclude a finding of coverage under State Farm's uninsured motorist provision. Similarly here, particularly where there was no misuse of the car by the insured herself, we conclude that her assailant's use of the car for commission of a sexual assault did not preclude a finding that her injuries arose out of the use of the car.

Nor are we persuaded that the cases from other jurisdictions cited by State Farm require a contrary conclusion. Noting that there are no Colorado insurance coverage cases addressing injuries arising out of a sexual assault in a vehicle, State Farm relies on foreign cases that have declined to find coverage for such injuries. See Aetna Cas. & Sur. Co. v. United States Fid. & Guar. Co., 806 F.2d 302 (1st Cir.1986); Doe v. State Farm Fire & Cas. Co., 878 F.Supp. 862 1995); PEMCO Ins. Co. v. Schlea, 63 Wash.App. 107, 817 P.2d 878 (1991).

As State Farm asserts, these cases appear to represent the majority view. However, none of them involved the sort of close causal connection between the vehicle and the assault that is present in this case.

In Aetna and PEMCO, the vehicle was used to transport the victim, but otherwise had no relationship to the assault other than to serve as its situs. In Dog, the car was used to transport the victim, and the victim was injured when her head was pushed against the car window. The court there found these facts insufficient to establish the requisite causal connection under Virginia law. It rejected the insured's reliance on the Colorado Supreme Court's decision in Cung La, supra, noting that it was "doubtful" whether Virginia courts would reach the same result and that, in any event, the vehicles in Cung La and the other cases cited by the insured "played a far more vital and central role in causing the injuries." Doe v. State Farm Fire & Cas. Co., supra, 878 F.Supp. at 868. Similarly here, where the car door, the reclining seat, and the seat belt all facilitated the assault, the car played a more central role in causing defendant's injuries than if it had merely served as the situs for the assault.

We thus agree with the trial court that, under the unique factual cireumstances presented here, there was a sufficient causal connection between the car and defendant's injuries to warrant a finding of coverage under the PIP and UM/UIM provisions of State Farm's policy.

IL

In her answer brief, defendant notes that she sought an award of attorney fees in the trial court, but the court did not address her request. She asks that we order the trial court to award her those fees if we affirm the judgment. State Farm responds that we may not consider this issue because defendant did not raise it in a cross-appeal.

If the trial court had denied defendant's request, we would, as State Farm points out, be precluded from considering it absent a cross-appeal. See Ruffing v. Lincicome, 737 P.2d 440 (Colo.App.1987) (where no cross-appeal filed, court of appeals had no jurisdiction to consider appellee's argument that trial court erred in awarding attorney fees to appellant); City of Delta v. Thompson, 37 Colo.App. 205, 548 P.2d 1292 (1975) (appellee may not seek to enlarge its own rights under judgment without cross-appealing).

However, it appears from the record that the trial court simply has not addressed the fee request. Accordingly, while the issue thus is not ripe for appellate review, defendant is not precluded from seeking a ruling on it in the trial court following issuance of the mandate in this appeal. See Baldwin v. Bright Mortgage Co., 757 P.2d 1072 (Colo.1988)(judgment on merits was final for purposes of appeal, notwithstanding unresolved issue of attorney fees).

The judgment is affirmed.

Judge MARQUEZ and Judge TAUBMAN concur.


source: Caselaw Access Project

author: Judge ROY. Judge DAILEY

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jessie VALDEZ, Defendant-Appellant.
    No. 00CA1931.
    Colorado Court of Appeals, Div. III.
    March 14, 2002.
    Rehearing Denied April 25, 2002.
    Certiorari Denied Oct. 28, 2002.

      Ken Salazar, Attorney General, John D. Seidel, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.
    Horowitz & Wake, Philip L. Gordon, Denver, CO, for Defendant-Appellant.
   Opinion by

Judge ROY.

Defendant, Jessie Valdez, appeals the judgment and sentences imposed upon his conviction of two counts of possession of controlled substances and five habitual criminal counts. We affirm the convictions in part, reverse them in part, vacate the sentences, and remand for resentencing.

Defendant was found guilty after a jury trial of possession of a schedule III controlled substance (codeine), a class four felony, and possession of a schedule IV controlled substance (alprazolam), a class five felony. Thereafter, the trial court found defendant to be a habitual criminal based on five prior convictions.

Before sentencing, defendant requested and was granted a proportionality review. The trial court determined that the required sentence under § 16-13-101(2), C.R.S$.2001, twenty-four years on the class four felony count (codeine) and twelve years on the class five felony count (alprazolam), would be unconstitutionally disproportionate to the crimes for which defendant was convicted. Therefore, the court sentenced him to twelve years on the class four felony (codeine) and ten years on the class five felony (alprazo-lam), to be served concurrently. This appeal followed.

I.

Defendant contends that the trial court erred in admitting, over his objection, evidence of drug paraphernalia that was seized from his apartment during the execution of a search warrant. We disagree.

Evidence of other offenses or acts that is not extrinsic to the offense charged, but is instead part of the criminal episode or transaction with which the defendant is charged, is admissible to provide the fact finder with a full and complete understanding of the events surrounding the crime and the context in which the charged crime occurred. This res gestae evidence is not subject to the general rule that excludes evidence of prior criminality. People v. Quintana, 882 P.2d 1366 (Colo.1994).

Res gestae evidence is admissible only if it is relevant and its probative value is not substantially outweighed by the danger of unfair prejudice. People v. Czemerynski, 786 P.2d 1100 (Colo.1990); see CRE 403. The trial court has substantial discretion in determining the admissibility of evidence. Absent an abuse of discretion, the trial court's evidentiary rulings will be affirmed. People v. Eppens, 979 P.2d 14 (Colo.1999); People v. Davalos, 30 P.3d 841 (Colo.App.2001).

Here, the trial court allowed two police officers who participated in the search of defendant's apartment to testify regarding items of drug paraphernalia that were recovered: two spoons containing heroin residue, which were recovered under a mattress along with one of the alprazolam pills, and a marihuana pipe and a quantity of marihuana, which were recovered from a chair close to the nightstand where the other two alprazo-lam pills were found.

The trial court determined that this evidence was admissible as res gestae. Howeyver, in an effort to minimize any prejudice to defendant, the court gave the jury a limiting instruction regarding the use that it could make of the evidence. Specifically, the court told the jury that the evidence "should not in any way, shape, or form be considered by you as somehow indicating bad character of the defendant or that he is necessarily guilty by implication of the crimes that he is charged with."

In addition, the court subsequently instructed the jury:

[Ylou have heard testimony and received exhibits regarding drug paraphernalia recovered from [defendant's] apartment.... You may consider this evidence and give it such weight as you deem appropriate only, and I emphasize the word "only," for the purpose of determining whether the Defendant knowingly possessed Codeine and/or Alprazolam and for no other purpose.

We are not persuaded by defendant's argument that the relevance of this evidence was outweighed by the danger of unfair prejudice. The evidence of illegal drug paraphernalia was relevant to the question of defendant's knowledge of the nature of the codeine and alprazolam pills recovered from his apartment and their illegality in the absence of a prescription. Moreover, because defendant's theory of the case was that he had no knowledge of any controlled substances in his apartment, the evidence gave the jury a more complete picture of the cireumstances under which the codeine and alprazolam were found. Seq, eg., People v. Mack, 33 P.3d 1211 (Colo.App.2001) (evidence of pager and amount of cash interwoven with facts of defendant's arrest was relevant to jury's full understanding of events surrounding search and arrest); People v. Ornelas, 937 P.2d 867 (Colo.App.1996)(information surrounding defendant's activities and knowledge relative to the distribution of other drugs considered proper res gestae evidence).

Furthermore, although not required, the trial court instructed the jury twice regarding the limited purposes of the evidence. We must presume that the jury followed the limiting instructions given by the court. See People v. O'Neal, 32 P.3d 533 (Colo.App.2000).

Therefore, we conclude that the trial court did not abuse its discretion in admitting this evidence.

IL.

Defendant also contends that the evidence presented at trial was insufficient to support his conviction for possession of al-prazolam. Specifically, he asserts that no evidence was presented to establish that he knew what the alprazolam pills were or that they were illegal, and that the guilty verdict was therefore based on speculation and conjecture, rather than direct evidence. We are not persuaded.

Where the sufficiency of the evidence is challenged on appeal, a reviewing court must determine whether the evidence, viewed as a whole and in the light most favorable to the prosecution, is sufficient to support a conclusion by a reasonable person that the defendant is guilty of the erimes charged beyond a reasonable doubt. Kogan v. People, 756 P.2d 945 (Colo.1988). The evidence, whether direct or cireumstantial, must be both substantial and sufficient to support the determination of guilt. People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973).

It is the duty of the fact finder in a criminal case to determine the credibility of the witnesses, to consider what weight should be given to all parts of the evidence, and to resolve conflicts, inconsistencies, and disputes in the evidence. Kogan v. People, supra; People v. Martinez, 36 P.3d 154 (Colo.App.2001).

Here, the prosecution established that the alprazolam was found in defendant's apartment next to his bed and underneath the mattress. It was also shown that defendant was the only occupant of the apartment. The evidence established that the pills beside the bed were wrapped together in cellophane cigarette packaging material similar to the packaging of the codeine tablets discovered in a shirt in defendant's closet. Trial testimony established that defendant admitted that the tablets found in the shirt contained codeine and that he knew a prescription was necessary to possess them. Finally, evidence was introduced regarding illegal drug paraphernalia found in the vicinity of the drugs defendant was charged with illegally possessing.

Viewing this evidence in the light most favorable to the prosecution, as we must, we conclude that it is substantial and sufficient to allow a reasonable juror to determine that defendant knew the nature of the pills found packaged together beside his bed and underneath his mattress. Therefore, we reject his contention.

TIL.

Defendant further contends that his conviction for possession of codeine as a schedule III controlled substance as a class four felony must be reversed. We agree in part.

Here, the concentration of codeine in a particular dose establishes the penalty to which a defendant may be subjected. Under § 18-18-405(@)(b)(I), C.R.S8.2001, # a substance is classified under schedule III, possession of that substance constitutes a class four felony. Under § 18-18-405(@2)(d)(D, C.R.8.2001, if a substance is classified under schedule V, possession constitutes a class one misdemeanor. Codeine appears in the statutes under both schedule III and schedule V, depending upon the concentration of the drug. See § 18-18-205(@)(d)(D, (ID), C.R.S. 2001 (schedule III); § 18-18-207(@)(b)(ID), C.R.8.2001 (schedule V).

Defendant was charged with and convicted of possession of codeine as a schedule III controlled substance, a class four felony. Therefore, the prosecution was required to prove beyond a reasonable doubt that defendant possessed codeine in a concentration sufficient to place it on schedule III. The record reflects, and the prosecution concedes, that no evidence was presented at trial to establish the concentration of the codeine contained in the eight tablets found in defendant's apartment.

Therefore, the evidence at trial was insufficient to establish that defendant committed the crime with which he was charged in the information and convicted, that is, possession of a schedule III controlled substance (codeine), a class four felony. Consequently, his conviction for that offense must be reversed.

However, the evidence at trial did establish that the tablets found in his apartment contained codeine and that he was aware that a prescription was necessary to possess them. Defendant does not dispute that evidence. Ilegal possession of any concentration of codeine up to 200 milligrams per 100 grams is sufficient to constitute possession of a schedule V controlled substance under § 18-18-207(2)(b)(I), a class one misdemeanor. See § 18-18-405(@)(d)(D).

Thus, the evidence at trial was sufficient to establish defendant's guilt of the lesser included misdemeanor offense. Consequently, on remand, the court shall enter a conviction for the misdemeanor offense and resentence defendant in accordance with § 18-1-106, C.R.9S.2001. See People v. Patterson, 187 Colo. 431, 532 P.2d 342 (1975)(if appellate court reverses conviction as to greater offense for insufficient evidence, it may direct entry of judgment on lesser included offense supported by sufficient proof, even if jury was not instructed upon that lesser offense); People v. Saleh, 25 P.3d 1248 (Colo.App.2000) (cert. granted on other grounds July 2, 2001)(same).

IV.

Defendant's final contention is that the trial court, having found that the statutorily prescribed habitual criminal sentences under § 16-183-101, C.R.8.2001, were unconstitutionally disproportionate, must resen-tence him to a term in the presumptive range for the felony class of the offense. Again, we agree in part.

Initially, we note that the People have not appealed the trial court's determination that the statutorily prescribed habitual criminal sentences were disproportionate. Cf. People v. Mershon, 874 P.2d 1025 (Colo.1994)(reversing trial court's determination that defendant's sentence was disproportionate where the People appealed the issue). We also note that, because of our previous holding, we need only deal with defendant's conviction of possession of a schedule IV controlled substance (alprazolam), a class five felony.

The presumptive sentencing range for a class five felony is one to three years imprisonment followed by two years of mandatory parole. Section 18-1-105(1)(a)(V)(A), C.R.S. 2001. As applied here, an aggravated sentence of one and one-half to six years imprisonment followed by two years of mandatory parole must be imposed if the trial court finds certain enumerated extraordinary aggravating circumstances. Section 18-1-105(1)(a)(V), (9)(a), C.R.S.2001. None of the enumerated extraordinary aggravating circumstances is present in this case. See § 18-1-105(9)(a)(I)-(IX), C.R.S8.2001. In the event, however, and again as applied here, a trial court finds nonenumerated extraordinary mitigating or aggravating circumstances based on the record or presentencing report, it may, in its discretion and after specific findings, sentence the defendant to a minimum of six months to a maximum of six years plus two years of mandatory parole. Section 18-1-105(1)(a)(V), (6), (7) C.R.S.2001.

The applicable provisions of the habitual criminal statute, § 16-18-101(1.5), (2), C.R.S. 2001, provide, in pertinent part, as follows:

(1.5) Every person convicted in this state of any class 1, 2, 3, 4, or 5 felony who, within ten years of the date of the commission of the said offense, has been twice previously convicted upon charges separately brought and tried, and arising out of separate and distinct criminal episodes ... of a felony ... shall be adjudged an habitual criminal and shall be punished for the felony offense of which such person is con-viected by confinement in a correctional facility for a term of three times the maximum of the presumptive range pursuant to section 18-1-105, C.R.S., for the class of felony of which such person is convicted. (2) Every person convicted in this state of any felony, who has been three times previously convicted, upon charges separately brought and tried, and arising out of separate and distinct eriminal episodes, either in this state or elsewhere, of a felony ... shall be adjudged an habitual criminal and shall be punished for the felony offense of which such person is convicted by imprisonment in a correctional facility for a term of four times the maximum of the presumptive range pursuant to section 18-1-105, C.R.S., for the class of felony of which such person is convicted. (emphasis added)

The former is referred to as the "little habitual" and the latter as the "big habitual."

Neither § 16-13-1011 governing sentencing of habitual criminals, nor § 18-1-105, C.R.S. 2001, governing felony sentencing in general, specifically addresses the issue of what sentence may be imposed after a finding by the trial court that the habitual criminal sentence, big or little, would be disproportionate. In addition, no appellate case has directly addressed the issue. Cf. People v. Deroulet, 22 P.3d 939 (Colo.App.2000)(cert. granted Jan. 16, 2001)(affirming without addressing trial court's imposition of sentence less than that provided for in habitual criminal statute, but greater than presumptive or aggravated range); People v. Gaskins, 923 P.2d 292 (Colo.App.1996)(remanding a disproportionate sentence under the big habitual statute for resentencing, with allowance to consider sentencing under little habitual statute for which defendant qualified, although there was no jury finding to that effect).

Here, unlike in Gaskins, defendant's prior felony convictions necessary to qualify him for little habitual sentencing occurred more than ten years before the offense in this case. Thus, defendant does not qualify for sentencing under the little habitual statute. See § 16-13-101(1.5).

Contrary to the People's argument, we do not read Gaskins as suggesting that when a defendant has been adjudicated under the big habitual statute and sentencing under that statute is disproportionate, the sentence imposed must necessarily be outside the presumptive range for the offense. Rather, in our view, Gaskins stands for the proposition that, once a finding of disproportionality has been made, a trial court in resentencing should consider all sentencing options otherwise authorized by statute. See People v. Gaskins, supra, 923 P.2d at 297 (noting that statutes create a "class" of defendants adjudged habitual criminals and prescribe specific punishments to be imposed upon their conviction of subsequent felonies).

Because the defendant in Gaskins could have been sentenced under the little habitual statute, the division remanded for resentenc-ing to include, but not to require, consideration of a sentence under that statute. People v. Gaskins, supra, 923 P.2d at 297-98. However, the little habitual statute does not apply to this defendant. Therefore, the only available statutorily authorized sentencing options are those set forth in § 18-1-105, C.R.8.2001.

We reject the People's contention that legislative intent requires that a trial court, after determining that a mandatory big habitual criminal sentence is disproportionate, is authorized to impose the longest sentence that it finds is not disproportionate, no matter where that sentence falls in terms of years. The sentencing statutes are not ambiguous. The plain language of the statutes governing a trial court's authority in sentencing criminal defendants provides no support for this argument. See Robles v. People, 811 P.2d 804 (Colo.1991)(in determining legislative intent, courts look first to plain language of statute; when language is clear so that intent can be ascertained with reasonable certainty, there is no need to resort to other rules of statutory interpretation).

Rather, § 16-13-101(2) provides that, upon a finding of habitual criminality, a mandatory penalty of four times the maximum presumptive range sentence for the class of felony for the offense of conviction shall be imposed. The statute does not provide for a range of punishment, nor does it permit a sentence to a lesser term. Thus, here, once the trial court determined that this sentence would be disproportionate and, consequently, unconstitutional, the only other sentencing options applicable to this defendant are those provided in § 18-1-105.

We also reject defendant's contention that the trial court may not consider an aggravated range sentence. Rather, the court, in exercising its discretion, must sentence defendant in accordance with all applicable provisions of § 18-1-105, including § 18-1-105(6), after making all of the required findings on the record in support of the sentence imposed. See § 18-1-105(7). The maximum aggravated range sentence is six years plus two years of mandatory parole.

Therefore, we conclude that defendant's sentence on the class five felony offense must also be vacated, and we remand the case for resentencing.

The judgment of conviction is reversed and the sentence is vacated on the class four felony count, possession of a schedule III controlled substance (codeine). The trial court is directed to enter a judgment of conviction for a class one misdemeanor count of possession of a schedule V controlled substance (codeine) under § 18-18-405(2)(d)(D), and to impose sentence accordingly under § 18-1-106, C.R.S.2001. The judgment of conviction on the class five felony count, possession of a schedule IV controlled substance (alprazolam), is affirmed. The sentence on that count is, however, vacated, and the case is remanded for further proceedings in accordance with the views expressed in this opinion.

Judge NEY concurs.

Judge DAILEY concurs in part and dissents in part.

Judge DAILEY

concurring in part and dissenting in part.

I concur in parts I through III of the majority's opinion. I respectfully dissent, however, from part IV of the majority's opinion. There, the majority holds that a person formally adjudicated a "big" habitual offender under §$ 16-13-101(2), C.R.S.2001, based upon three or more prior felony convictions is, upon judicial invalidation of his habitual offender sentence, eligible for presumptive range sentencing for the felony of which he currently stands convicted.

The majority reaches its decision by looking to various other statutory provisions and concluding that, because they were not, by their express terms, applicable, by default the defendant's sentence must be determined under ordinary discretionary sentencing principles.

I disagree. I think the question turns on legislative intent: not, however, on "actual" legislative intent (because the legislature obviously intended to have persons in defendant's position sentenced to four times the maximum term of the presumptive range associated with his present felony), but rather upon the intent the legislature would have had had it known that a "big" habitual offender sentence could not be applied in this case.

In determining how to apply statutes to situations not contemplated by the legislature, the eminent jurist Learned Hand once wrote, "We can best reach the meaning here, as always, by recourse to the underlying purpose, and, with that as a guide, by trying to project upon the specific occasion how we think persons, actuated by such a purpose, would have dealt with it, if it had been presented to them at the time." Borella v. Borden Co., 145 F.2d 63, 64 (2d Cir.1944), aff'd 325 U.S. 679, 65 S.Ct. 1223, 89 L.Ed. 1865 (1945).

Similarly, the leading commentator on the subject of statutory interpretation has noted, "[Where an issue arises within a general area covered by statute but for which the legislature has not made specific provision so as to preclude a judicial finding of any specific legislative intent, the court must discern the applicable legislative intent by what is necessarily an act of projection starting from the areas where legislative intent is readily discernible, and projecting to fair and reasonable corollaries of that intent for the specific issue before the court." 2A Norman J. Singer, Sutherland's Statutory Construction § 45:09, at 51-52 (6th ed.2000).

In using this approach, I find it inconceivable that a legislature which requires a "big" habitual offender to be imprisoned for four times the maximum term in the applicable presumptive range would, following judicial invalidation of that sentence, permit the same offender to be sentenced below the maximum presumptive range term.

In my view, the reasonable corollary to § 16-18-101 is that if the severely aggravated range sentence required thereunder is invalidated by the judiciary, some lesser form of aggravated range sentence must apply.

The majority correctly points out that, by its very terms, the "little" habitual sentencing provision, § 16-13-101(1.5), C.R.S8.2001, cannot apply to the facts of this case. However, nothing prevents imposition of an aggravated range sentence of up to two times the maximum term in the presumptive range. See § 18-1-105(6), C.R.S8.2001. In my view, upon judicial invalidation of an habitual offender sentence, as a matter of law the underlying formal adjudication of habitual criminality constitutes an "extraordinary aggravating factor" requiring at least an aggravated range sentence within the meaning of § 18-1-105(6).

I realize that my conclusion does not square up with the precise text of the sentencing statutes. But, to apply them in any other way defies common sense. See Hall v. Walter, 969 P.2d 224, 229 (Colo.1998)("the intention of the legislature prevails over a literal interpretation of the statute that would lead to an absurd result"); People v. Reed, 932 P.2d 842, 843 (Colo.App.1996)("we will not construe a statute either to defeat the legislative intent or to lead to an absurd or illogical result"). See also DeLeon v. Tompkins, 40 Colo.App. 241, 243, 576 P.2d 563, 564 (1977)("a court is not indulging in judicial legislation when it construes a statute so as to avoid an absurd result"), rev'd, 197 Colo. 569, 595 P.2d 242 (1979); Howard D. Johnson Co. v. King, 351 A.2d 524, 532 (Me.1976)(same).

Consequently, although I too would reverse the sentence imposed in this case, I would remand for imposition of an aggravated range sentence.


author: Judge CASEBOLT.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Geraldine A. RIVERA, Defendant-Appellant.
    No. 99CA2038.
    Colorado Court of Appeals, Div. V.
    March 14, 2002.
    Certiorari Denied Oct. 21, 2002.

      Ken Salazar, Attorney General, Dawn M. Weber, Assistant Attorney General, Denver, Colorado, for Plaintiff{-Appellee.
    David S. Kaplan, Colorado State Public Defender, Karen M. Gerash, Deputy State Public Defender, Julie Iskenderian, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge CASEBOLT.

Defendant, Geraldine A. Rivera, appeals the judgment of conviction entered upon jury verdicts finding her guilty of one count of securities fraud, one count of conspiracy to commit securities fraud, and one count of sale of an unregistered security. Defendant also appeals the denial of her Crim. P. 85(c) postconviction motion asserting ineffective assistance of counsel. We affirm in part, reverse in part, and remand for a new trial.

Defendant, her son, and two others solicited investments in a business that proposed to provide twenty-four-hour per day childcare at two separate facilities. The prosecution asserted that the plan to operate daycare centers masked a fraudulent scheme to bilk investors of funds and to convert the funds to the conspirators' personal use.

The codefendants were tried separately from defendant. The jury convicted defendant for the crimes noted above, but acquitted her of other counts related to theft.

I.

Defendant contends that the trial court erred in not requiring the prosecution to elect which act supported the counts of seeu-rities fraud and conspiracy to commit securities fraud or, alternatively, in not instructing the jury with a modified unanimity instruction that it must agree unanimously on the act or acts that constituted the charged offenses. We agree.

Defendant did not request an election, nor did she submit or request a modified unanimity instruction. Accordingly, we review the alleged defect for plain error. See Crim. P. 52(b); People v. Williams, 899 P.2d 306 (Colo.App.1995). Under this standard, the error must so undermine the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction. People v. Kruse, 839 P.2d 1 (Colo.1992).

To prevail on a claim of instructional plain error, the defendant must demonstrate not only that the instruction affected a substantial right, but also that the record reveals a reasonable possibility that the error contributed to the conviction. See People v. Garcia, 28 P.3d 340 (Colo.2001).

A.

'When evidence of many acts is presented, any one of which could constitute the offense charged, and there is a reasonable likelihood that jurors may disagree on the act the defendant committed, the trial court must take one of two actions to ensure jury unanimity. The court must either require the prosecution to elect the transaction on which it relies for conviction, or instruct the jury that to convict the defendant it must unanimously agree that the defendant committed the same act or committed all the acts included within the period charged. Thomas v. People, 803 P.2d 144 (Colo.1990); People v. Estorga, 200 Colo. 78, 612 P.2d 520 (1980).

The requirement of an election or a modified unanimity instruction assures that a conviction does not result from some members of the jury finding the defendant guilty of one act, while others convict based on a different act. Roelker v. People, 804 P.2d 1336 (Colo.1991); see also § 16-10-108, C.R.S.2001 (unanimity requirement for jury verdicts in criminal cases).

Here, the prosecution charged defendant with securities fraud under § 11-51-501(1)(c), C.R.$.2001, of the Colorado Securities Act (CSA), which provides, in pertinent part:

(1) It is unlawful for any person, in connection with the offer, sale, or purchase of any security, directly or indirectly:
(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person.

The prosecution presented evidence of numerous securities transactions involving at least twenty-five investors, concerning two proposed daycare facilities in different cities, and spanning a two-year period. The prosecution attempted to link defendant to all of these transactions, either as a principal or as a complicitor. The asserted transactions were stock sales and purchases, loans, and creation of at least one limited partnership. Funds were accepted in cash as well as by checks made out variously to entities created by the conspirators or to themselves individually. Defendant took part in soliciting some investors, but not others, and as to at least one transaction there was no evidence that she had any direct contact with the investor.

Under these circumstances, there is a reasonable likelihood that the jury could have disagreed concerning the act or acts defendant committed. The jury instructions with respect to the charged count of securities fraud did not require the jury to so agree. See People v. Simmons, 973 P.2d 627 (Colo. App.1998) (absent election, general verdict form did not guarantee unanimity on felony menacing charge where evidence presented reasonable likelihood that jurors could disagree as to intended victim). Instead, the instructions required only that the jury determine whether "at or about the date and place charged," defendant had engaged in an "act, practice or course of business" that constituted securities fraud.

Moreover, the error was not harmless. This case is unlike cases in which the evidence, while referring to separate events, described repeated acts with respect to a single victim-witness, such that the jury would be likely to agree either that all of the acts occurred or that none occurred. See Thomas v. People, supra (error in not requiring election or modified unanimity instruction found harmless where charge limited to particular type of act and evidence presented was uniform in nature).

Here, there was substantial variety with respect to the nature of defendant's involvement in the subject transactions. Accordingly, there was not only evidence of multiple acts, but a substantial likelihood that jury members could disagree regarding which acts supported conviction.

With respect to the related charge of conspiracy to commit securities fraud, our analysis is the same. The elements of the crime include the commission of an overt act in pursuance of the conspiracy. See § 18-2-201, C.R.S.2001. Absent an election or a modified unanimity instruction, the jury could have convicted defendant while disagreeing about which act constituted the overt act.

The trial court is responsible for ensuring that the jury is properly instructed on the law and that a conviction on any count is the result of a unanimous verdict. See Kogan v. People, 756 P.2d4 945 (Colo.1988); People v. Hardin, 199 Colo. 229, 607 P.2d 1291 (1980). Because this error went to the very foundation of the jury's guilty verdicts on the charges of securities fraud and conspiracy, we conclude that it casts serious doubt on the reliability of the convictions on those charges, see People v. Kruse, supra, and there is thus a reasonable possibility that the error contributed to the conviction. Hence, we conclude there was plain error.

B.

In so holding, we reject the People's argument that an election was not required because the prosecution pursued a "course of business" theory under § 11-51-501(1)(c) and did not pursue an "act or practice" theory. They assert that the particular instances of fraud with respect to each investor were in essence "alternative means" that contributed to the overall course of business fraud with which defendant was charged. See People v. Taggart, 621 P.2d 1375 (Colo.1981)(unanimity required with respect to crime charged, but not as to alternative means of committing crime).

However, this argument ignores the fact that the instruction on the securities fraud count allowed the jury to convict on the basis of either an act or a practice or a course of business. Moreover, the prosecution did not specifically limit its closing argument to a course of business theory, nor did it reject any other theory. Accordingly, even if we assume that unanimity would not be required to convict under a course of business theory, we cannot conclude that the jury convicted defendant solely on such a theory here.

C.

Relying upon People v. Freda, 817 P.2d 588 (Colo.App.1991), the People also argue that a unanimity instruction was not required here because it is permissible for jurors to disagree on which evidence satisfies a particular element, so long as each juror agrees that each element is supported by proof beyond a reasonable doubt. We find Freda distinguishable.

The defendant in Fredo was charged with four counts of offering a false instrument for recording. He sought an election concerning which entries on the offered forms constituted the element of material false information. The court held that election concerning the particular entries was not required, because the separate entries on the forms were not evidence of many acts, any one of which would constitute the offense charged. Instead, the operative act was that of offering the false instrument as a whole. Therefore, because each count specified the one false document that was offered for recording as the basis for the charge, and only one transaction was charged in each count, no election was required.

Here, however, it is the fraud committed in connection with a sale or an offer of securities that constitutes the operative act. See § 11-51-501(1). In this case, there was evidence of more than twenty potential transactions with more than two dozen different investors. Moreover, the prosecution charged, and defendant was convicted of, only one count of securities fraud and one count of conspiracy. Cf. People v. Lawrence, 55 P.3d 155 (Colo.App.2001)Ginstructions on thirty-four separate charges indicating that each count charged a separate and distinct offense, coupled with evidence that only one discrete act could constitute each crime, made modified unanimity instruction unnee-essary).

Accordingly, defendant's conviction for securities fraud and conspiracy to commit securities fraud cannot stand, and retrial on those charges is required.

IL.

Because some of defendant's other contentions of error would preclude retrial, are likely to arise again on retrial, or relate to her remaining conviction, we address them here.

We first reject defendant's contention that the court erred in instructing the jury that it need not find that she knew a security was being offered or sold to be convicted of seeu-rities fraud.

Section 11-51-501, the specific provision under which defendant was charged, does not contain a culpable mental state for securities fraud. However, § 11-51-608(1), CRS. 2001, part of the CSA, provides that any person who "willfully" violates the provisions of § 11-51-501 commits a class three felony.

Concerning the elements of securities fraud, the court instructed the jury, as relevant here, that the prosecution must prove that defendant:

3. in connection with
4. the offer or sale of any security,
5. directly or indirectly,
6. willfully
7. engaged in any act, practice or course of business
8. which operated as a fraud or deceit upon any person.

Concerning defendant's knowledge that the transactions involved securities, the court instructed the jury that:

The prosecution does not have to prove the defendant was aware that the stock . was a security. Rather, the prosecution must prove beyond a reasonable doubt that what was being sold, shares of stock in [defendant's entity] was a security, whether or not the defendant knew it was a security.

Finally, an instruction on the culpable mental state provided:

A person acts "willfully" or "knowingly" with respect to conduct or to a cireum-stance described by a statute defining an offense when she is aware that her conduct is of such nature or that such cireumstance exists. A person acts "willfully" or "knowingly" with respect to a result of her conduct when she is aware that her conduct is practically certain to cause the result.

Accordingly, under these instructions the willfulness element (number 6) did not apply to the "in connection with the offer or sale of any security" elements (numbers 3 and 4). See People v. Rodriguez, 914 P.2d 230 (Colo.1996)(statement of culpable mental state, when set apart in instruction on elements of crime, modifies all succeeding elements).

Defendant contends that she could not be convicted of the erime without a finding that she acted willfully with respect to each element of the offense, which, by her definition, requires the prosecution to prove that she knew the stock was a security. This appears to be an issue of first impression in Colorado.

When interpreting a statute, we are guided by the intent of the General Assembly, which directs us to look first to the plain meaning of the words employed. People v. Banks, 9 P.3d 1125 (Colo.2000). We resort to rules of statutory construction and legislative history only if the words employed give rise to more than one meaning. See Terry v. People, 977 P.2d 145 (Colo.1999).

The provision under which defendant was charged is divided into a general section describing the cireumstances under which a violation can occur, including the use of a security, and a specific subsection describing the proscribed fraudulent conduct. See § 11-51-501(1)(c). On its face, it is unclear whether the penalty provision requires that willfulness apply only to the fraudulent conduct, or that it also apply to the attendant cireumstances. See Copeland v. People, 2 P.3d 1283 (Colo.2000)(mens rea of statute may speak to conduct, cireumstances, or result, or any combination thereof, but not necessarily to all three).

Our determination of this question is controlled by § 18-1-508(4), C.R.9.2001, which states:

When a statute defining an offense pre-seribes as an element thereof a specified culpable mental state, that mental state is deemed to apply to every element of the offense unless an intent to limit its application clearly appears.

In applying § 18-1-503(4), the supreme court has framed the issue as whether the General Assembly intended to apply the mens rea requirement to the subject element, in this case, knowledge that the particular investment vehicle is a security. In that regard, we consider the legislative history of the applicable statute, here the CSA. See Copeland v. People, supra (applying § 18-1-508(4), court found legislative history supported conclusion that legislature did not intend arson statute's culpable mental state to apply to endangerment provision).

Among the legislative purposes of the CSA are the protection of investors from exploitation and the maintenance of public,confidence in securities markets, and the CSA is to be broadly construed to effectuate its purposes. Section 11-51-101(2), C.R.S.2001; Raymond Lee Organization, Inc. v. Securities Commission, 36 Colo.App. 417, 543 P.2d 75 (1975), rev'd on other grounds, 192 Colo. 112, 556 P.2d 1209 (1976); see also § 2-4-203(1)(g), C.R.8.2001 (legislative declaration or purpose may be considered in determining legislative intent).

In addition, the CSA was adopted with reference to federal securities regulations, which it parallels, and the CSA directs coordination with the federal provisions. See § 11-51-101(3), C.R.S.2001; Sauer v. Hays, 36 Colo.App. 190, 539 P.2d 1343 (1975). The securities fraud provision now contained in § 11-51-501 is the analog of section 10(b) of the Federal Securities and Exchange Act of 1934, 15 U.S.C. § 78j(b) (2001), and Securities & Exchange Commission Rule 10b-5, 17 C.FE.R. 240.10b-5, and is identical to section 101 of the Uniform Securities Act. See People v. Riley, 708 P.2d 1359 (Colo.1985). Interpretations of federal law are persuasive in interpreting like state statutes. See People v. Riley, supra; People v. Blair, 195 Colo. 462, 579 P.2d 1133 (1978).

Federal securities fraud provisions, like Colorado's provision, are interpreted broadly and flexibly, so as to anticipate and encompass all the ingenious variations of securities fraud that may arise. See United States v. Jensen, 608 F.2d 1349 (10th Cir.1979).

Requiring knowledge that the investment is a security would run counter to the legislative purposes of protecting investors and maintaining public confidence in securities markets, especially in light of the fact that the definition of a security embodies a flexible, rather than static, principle. Raymond Lee Organization, Inc. v. Securities Commission, supra; see also § 11-51-201(17), C.R.8.2001 (CSA definition of "security"). A defendant who has engaged in acts of fraud and deceit is no less culpable for being unaware of the statutory definition of a security. See United States v. Brown, 578 F.2d 1280 (9th Cir.1978).

Likewise, federal and state authority is uniform in concluding that proof of knowledge that an investment is a security is not required to convict for "willful" securities fraud. See United States v. Brown, supra; Buffo v. State, 415 So.2d 1158 (Ala.1982); State v. Irons, 254 Neb. 18, 574 NW 144 (1998); State v. Sheets, 94 NM. 356, 610 P.2d 760 (N.M.Ct.App.1980); see also Buffo v. Graddick, 742 F.2d 592 (11th Cir.1984)(proof of such knowledge not required for conviction on charge of aiding and abetting securities fraud).

For all of these reasons, we conclude that the General Assembly did not intend to apply the culpable mental state of willfulness to the security element. Accordingly, we perceive no error in the court's instructions. Thus, on retrial under similar factual civeumstances, the instructions may again be given to the jury.

IIL

Defendant contends that the pattern complicity jury instruction given concerning the securities fraud charge erroneously contained the "all or part" language criticized by the court in Bogdanov v. People, 941 P.2d 247 (Colo.1997). In light of our conclusion that the case must be remanded for retrial on this count, we direct the trial court to give a modified instruction in accordance with that case.

IV.

We reject defendant's contention that expert testimony given by the Colorado Commissioner of Securities should not have been admitted because it usurped the jury's factfinding function.

The Commissioner opined that a limited partnership agreement defendant entered into with certain investors constituted a security within the meaning of the CSA. He also testified that certain information known and not disclosed by defendant, including her son's previous felony convictions related to theft, was material information that should have been disclosed to potential investors.

The commissioner was qualified without objection as an expert on the CSA, its application, and case law interpreting it. When the commissioner was asked to give his opinion regarding whether the limited partnership agreement constituted a security, defendant objected that the opinion was outside the area of expertise in which the commissioner was qualified. Abandoning that position on appeal, defendant now objects that the commissioner's opinions usurped the jury's function as factfinder.

Expert testimony is admissible when an expert's special knowledge will assist the trier of fact to understand evidence or to determine a fact in issue. CRE 702; People v. Shreck, 22 P.3d 68 (Colo.2001).

Opinion testimony that is otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. CRE 704. Moreover, whatever an expert or lay witness opines with respect to an ultimate issue, the jury retains its authority to determine the facts from the evidence and accept or reject such opinions. Accordingly, this concern for the integrity of the jury's function is unfounded. See People v. Collins, 730 P.2d 293 (Colo.1986).

v.

Defendant contends that there was insufficient evidence to convict her on the charges of securities fraud, conspiracy, and sale of an unregistered security. We disagree.

In reviewing an insufficiency of the evidence claim, we view the evidence presented as a whole and in the light most favorable to the prosecution to determine whether the evidence is sufficient to support a conclusion by a reasonable person that the defendant is guilty beyond a reasonable doubt. In this regard, the prosecution is entitled to the benefit of every reasonable inference that might be fairly drawn from the evidence. Kogan v. People, supra.

Here, there was substantial evidence presented that the proposal for twenty-four-hour daycare centers masked a conspiracy and actions on the part of defendant and her associates to defraud investors.

A.

Intent to defraud was evidenced by defendant's failure to disclose known, material facts to investors. Contrary to defendant's contention, such nondisclosure can be relevant to establish the guilt of a person charged with violating § 11-51-501(1)(c) (engaging in act, practice, or course of business), and it is not only relevant under § 11-51-501(1)(b), C.R.S8.2001 (making untrue statement of material fact or omitting to state material fact). See People v. Blair, supra (a material misstatement or omission may also constitute an "act" for which a defendant may be liable).

Defendant knew of her son's criminal history. Yet, several witnesses testified that defendant did not disclose this information to them, despite having the opportunity to do so. There also was ample evidence that a reasonable investor would consider such information to be material.

Defendant also failed to disclose other material information that might have dissuaded individuals from investing, including her own prior eviction and adverse judgment for de-Tinquent rent related to a prior daycare business, and a prior determination by government officials not to grant her a daycare facility license because of failure to meet applicable standards. See Goss v. Clutch Exchange, Inc., 701 P.2d 33 (Colo.1985)(information must be disclosed to potential investors if a reasonable person would consider the matter important in making an investment decision).

Intent to defraud was likewise evidenced by defendant's transfer of investment funds to her personal bank account. Granting all inferences in favor of the prosecution, there was ample evidence that defendant did not intend to complete the daycare center, and that the concept of the daycare center was a ruse through which she and her associates converted investors' funds to their own use.

While defendant's part in the solicitation of investors was often limited, it was important to the perpetration of the fraud. Defendant had worked in the childcare industry for several years, and she and her co-conspirators repeatedly touted her experience to investors. The evidence supported the conclusion that in several instances individual investment decisions were based partly on faith in her and her experience.

Moreover, on a few occasions defendant was directly responsible for the solicitation. With respect to one couple who invested, defendant solicited a loan that she personally guaranteed. She also executed a limited partnership agreement with the couple as part of a separate investment in the scheme. Defendant represented to several investors that a daycare facility in another city was open or was near completion. In fact, neither proposed facility was ever opened or completed.

Defendant was directly involved in an application for a Small Business Administration (SBA) loan that added credibility to the scheme. Defendant dealt directly with bankers regarding the SBA loan, which was earmarked for construction of one of the proposed facilities. Defendant signed loan documents as a corporate officer, and her efforts resulted in approval of the loan. It is reasonable to infer that the approval itself was useful to defendant and her associates in touting their investment scheme and drawing in more investors.

Also of importance, the loan was never finalized for lack of a daycare facility license. The prosecution presented evidence that, while defendant had previously held a license to operate a daycare facility, neither she nor anyone else ever filed an application for a license for the new facility. This failure to obtain government approval of a license, upon which the SBA loan hinged, supports the inference that defendant did not intend to open a daycare facility.

B.

Much of the evidence supporting defendant's conviction for securities fraud also supports her conviction on the charge of conspiracy to commit securities fraud.

A person commits conspiracy to commit a crime if, with the intent to promote or facilitate its commission, he or she:

agrees with another person or persons that they, or one or more of them, will engage in conduct which constitutes a crime or an attempt to commit a crime, or he [or shel agrees to aid the other person or persons in the planning or commission of a crime or of an attempt to commit such crime.

Section 18-2-201(1), C.R.8.2001.

Specifically, there was evidence that defendant solicited investors jointly with her asso-clates and applied for the SBA loan with her son. Funds that defendant converted to her personal use were signed over to her by an associate, which evidences not only defendant's criminal intent, but an agreement among the co-conspirators to convert investment monies to their personal use.

Taken as a whole, the evidence thus supports the conclusion that defendant worked together with her associates to solicit investments for a nonexistent daycare center and also to conceal material information from investors.

C.

With respect to the sale of an unregistered security, it was undisputed that none of the offerings made to investors, whether in the form of stock or other investment contracts, were properly registered. As noted, defendant solicited and was a signatory to one limited partnership agreement pursuant to which one couple invested funds. See § 11-51-201(17) (statutory definition of seeu-rity includes an investment contract). Defendant was also involved in the solicitations of other investors, which resulted in the sale of unregistered securities.

Accordingly, the evidence was sufficient to support a conclusion by a reasonable person that defendant was guilty of all three offenses beyond a reasonable doubt.

VI.

We next address defendant's contention that the trial court erred in admitting certain statements made by her son. Because we conclude that the evidence presented met the standard for admission of statements by a co-conspirator, we reject defendant's argument.

An out-of-court statement offered for the truth of the matter asserted is not hearsay if it is offered against a party as a statement made by a co-conspirator during the course of and in furtherance of the conspiracy. The contents of the statement may be considered to establish the existence of a conspiracy and participation by the party against whom the statement is offered. However, there must be corroborating evidence apart from the contents of the statement itself CRE 80l(d)(@2)(E); People v. Montoya, 753 P.2d 729 (Colo.1988).

In considering whether to admit a co-conspirator's statement, the trial court acts as a fact finder. The proponent of the statement bears the burden to establish by a preponderance of the evidence that the party against whom the statement is offered and the declarant were members of a conspiracy and that the declarant's statement was made during the course of and in furtherance of the conspiracy. People v. Montoya, supra.

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

Here, a prosecution witness testified to her conversations with defendant's son regarding investment in the daycare center scheme. The trial court reviewed evidence already presented, which included the evidence described above, and concluded that there was sufficient evidence of a conspiracy of which defendant and her son were members. The record supports that determination.

Moreover, the statements to which the witness testified concerned an investment solicitation, which occurred in the course of and furthered the conspiracy. We therefore conclude that the trial court properly admitted the evidence.

VIL

Defendant contends the trial court erred in admitting evidence of other acts under CRE 404(b). We conclude that the evidence was properly admitted.

An accused should be tried only for the offense for which he or she stands charged. Stull v. People, 140 Colo. 278, 344 P.2d 455 (1959). Thus, evidence of other wrongs or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity with that character. CRE 404(b).

Evidence of uncharged acts may be admissible for purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but evidence of prior acts is not admissible if its only relevance is to prove the propensity of an accused to commit crimes. People v. Spoto, 795 P.2d 1314 (Colo.1990).

However, when evidence is offered not under CRE 404(b), but under another eviden-tiary theory that allows its admission, a trial court may properly admit the evidence. See People v. Cauley, 32 P.3d 602 (Colo.App.2001); see also United States v. Williams, 900 F.2d 823, 825 (5th Cir.1990)(when the evidence of other acts and the evidence of the crime charged are "inextricably intertwined," both acts are part of a "single criminal episode," or the other acts were "necessary preliminaries" to the crime charged, the other acts evidence is considered to be intrinsic to the crime, and thus not subject to serutiny under rule 404(b)).

Here, the challenged evidence includes the criminal history of defendant's son, including felony convictions for theft and attempted theft; rejection of defendant's previous request for a daycare facility license because of her failure to meet government standards in the operation of her daycare business; defendant's eviction from the location of her prior daycare business; defendant's default on a prior business loan; a judgment entered against defendant for delinquent rent at the location of her prior daycare business; and a default judgment entered against defendant as the guarantor of a bail bond.

The prosecution offered the evidence to show that defendant concealed material information to advance a fraudulent course of business under § 11-51-501(c). A misrepresented or omitted fact is considered material if there is a substantial likelihood that a reasonable investor would consider the matter important in making an investment decision. See Goss v. Clutch Exchange, Inc., supra.

In our view, this evidence was admissible for the cited purpose. A potential investor would deem it material, for example, if the offeror of securities had a prior felony conviction, see State v. Stuber, 25 Kan.App.2d 254, 962 P.2d 1104 (1998), or if he or she had been involved in previous litigation. See United States v. Hilgeford, 7 F.3d 1340 (7th Cir.1993)(evidence of prior litigation admitted as intrinsic evidence because it showed defendant's willfulness, an element of filing false tax returns).

We reach the same conclusion concerning testimony regarding the personal use of investor funds by co-conspirators, the son's solicitation of an investor who was not otherwise connected to defendant, and an exhibit that summarized investments in the proposed daycare facilities, including investments involving some investors who did not testify at trial This was not evidence of other crimes and acts. Rather, the evidence went to prove defendant's commission of the acts that constituted the crimes charged in this case.

The testimony regarding conversion by defendant's associates of investment funds went directly to prove the existence of a conspiracy to defraud investors and fraud or deceit in the course of business. Other evidence showing that defendant herself converted investment monies to her own use corroborated the existence of the conspiracy and her participation in it. In one instance, funds were transferred from a co-conspirator to her, and she deposited those funds into her own account.

Under a theory of either conspirator liability or accomplice liability, defendant could be responsible for the acts of her associates. See §§ 18-2-201, 18-1-608, C.R.8.2001. Thus, evidence of her son's solicitation of an investor was relevant even though defendant apparently had no contact with her.

The summary of investments was not objectionable on the ground that it constituted evidence of other bad acts. The summary related entirely to investments in the proposed daycare facilities at issue in this case and to the fraudulent scheme of which defendant was a part. '

Moreover, even if we were to conclude that CRE 404(b) is applicable here, see United States v. Murphy, 935 F2d 899 (7th Cir.1991)(material information not disclosed treated and admitted under rule 404(b)), we would reach the same conclusion.

Pursuant to CRE 404(b), we undertake a four-part analysis to determine whether evidence of other bad acts is admissible. The evidence must relate to a material fact, and it must have logical relevance. The logical relevance must be independent of the inference that defendant has a propensity to commit crime. Finally, the evidence, if otherwise admissible, should be excluded if its probative value is substantially outweighed. by the danger of unfair prejudice. People v. Spoto, supra.

Here, defendant could be found guilty of securities fraud if she concealed material information from prospective investors. See § 11-51-501(1)(c), People v. Blair, supra.

The challenged evidence consists of information that was material under the CSA definition. See Goss v. Clutch Exchange, Inc., supra. Accordingly, the evidence was material and logically relevant under CRE 404(b). Its logical relevance was independent of the prohibited inference of propensity because it went to the existence of, and defendant's knowledge of, these prior bad acts, which she nevertheless failed to disclose to potential investors. Balancing the probative value against the danger of unfair prejudice, we conclude that the probative value of this evidence was substantial, as it went to the foundation of the fraud and defendant's involvement. The potential for unfair prejudice, although not negligible given the nature of the evidence, did not substantially outweigh the evidence'$ probative value.

Accordingly, we conclude that the trial court did not err in admitting this evidence, even if CRE 404(b) analysis is applied.

Defendant additionally contends that to the extent that the evidence was properly admitted, it should have been accompanied by a limiting instruction. However, when there is no objection to the evidence as it is being presented, much less a request for a limiting instruction, the trial court's failure to issue one sua sponte does not amount to plain error. See People v. Taylor, 804 P.2d 196 (Colo.App.1990).

In sum, the trial court did not err in admitting the evidence.

VIIL.

Defendant next contends the cumulative effect of the foregoing alleged errors requires reversal of her conviction. In light of our reversal of defendant's convictions for securities fraud and conspiracy, we need not address this contention as it relates to those charges. Concerning the unregistered securities conviction, we disagree.

Numerous formal irregularities, each of which might be deemed harmless, may in the aggregate show the absence of a fair trial, in which event reversal is required. People v. Roy, 723 P.2d 1345 (Colo.1986). However, this is not such a case.

A defendant, although not entitled to a perfect trial, has a constitutional right to receive a fair trial. Under the facts of this case, we conclude that the cumulative effect of the other alleged errors did not substantially prejudice defendant's right to a fair trial. See Gould v. People, 167 Colo. 113, 445 P.2d 580 (1968).

IX.

Concerning her postconviction motion, defendant requests reversal of her convictions and a new trial on the basis of ineffective assistance of counsel. We need not address the allegation as it relates to the counts of securities fraud and conspiracy. With respect to the sale of an unregistered security, the record supports the trial court's finding that defendant failed to demonstrate prejudice, and thus reversal is not required.

To prevail on a claim of ineffective assistance of counsel, a defendant bears the burden of proving that trial counsel's performance was deficient and that he or she was prejudiced thereby. Concerning prejudice, there must be a reasonable probability that, but for that deficient performance, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 LEd.2d 674 (1984); Davis v. People, 871 P.2d 769 (Colo.1994); People v. Palmer, 888 P.2d 348 (Colo.App.1994). And, when there is no demonstration of prejudice, a claim of ineffective assistance may be resolved on that basis alone. See People v. Palmer, supra.

Here, defendant has failed to show a reasonable probability that she would not have been convicted of sale of an unregistered security but for the alleged ineffective assistance of trial counsel.

As previously discussed, there was sufficient evidence to convict defendant. She contends that certain pieces of evidence might have been excluded if a more vigorous defense had been mounted. However, much of what defendant contends was excludable is the "other bad act" evidence, which was properly admitted.

Defendant does not call into question the evidence showing that the stock and other securities that were offered and sold were not registered. Defendant also has not identified any theory trial counsel could have pursued that would have excluded the bulk of the evidence describing her role in the sale of unregistered securities.

Defendant argues that she was exempt from prosecution for the limited partnership agreement because the agreement was not a public offering. We disagree.

The CSA exempts nonpublic offering transactions from criminal liability under the provision that proseribes the sale of unregistered securities. Section 11-51-808(1)G), C.R.8.2001.

Whether the nonpublic offering exemption is available is a question of fact to be determined upon consideration of all surrounding cireumstances. People v. Morrow, 682 P.2d 1201 (Colo.App.1983). The question is whether the offerees would have benefited from the information supplied in a registration statement. Lowery v. Ford Hill Investment Co., 192 Colo. 125, 556 P.2d 1201 (1976).

Here, defendant has not explained what evidence was presented, or could have been presented, that would support a finding that the limited partnership agreement transaction was a nonpublic offering. Having failed to identify what trial counsel could have done to prevail on this issue, defendant has failed to establish prejudice.

Moreover, even if we assume that the limited partnership transaction was exempt, there were numerous other transactions involving the sale of unregistered securities for which evidence was presented, linking defendant either as a principal or as a complicitor. Under the circumstances, defendant has failed to meet her burden to show prejudice.

X.

Finally, defendant contends that, at the hearing on her postconviction motion, the court limited the time for her presentation such that she was not allowed to testify. She requests that we direct the trial court to reopen the hearing to receive further testimony. However, even if we assume, without deciding, that the court abused its discretion in this regard, we conclude that any error is harmless.

An error is harmless if it does not affect a substantial right of a party. Error affects a substantial right when it can be said with fair assurance that the error substantially influenced the outcome of the case or impaired the basic fairness of the trial itself. Salcedo v. People, 999 P.2d 833 (Colo.2000); see also CRE 103(a); C.A.R. 35(e).

Here, defendant sought to testify on her own behalf. The trial court, citing the lateness of the hour and noting delays caused by defendant and defense counsel, allotted defendant a total of five minutes within which to present her testimony as well as any closing argument. Defendant elected to forgo testifying and instead used the time to present argument.

Defendant later submitted an offer of proof that she would have testified to trial counsel's failure to meet with her and fully to investigate and vigorously pursue her defense. However, evidence of trial counsel's inadequacies in this area was already established through counsel's own testimony. Accordingly, the evidence would have been cumulative and properly excluded. See CRE 403 (relevant evidence may be excluded if its probative value is substantially outweighed by the danger of needless presentation of cumulative evidence). Moreover, defendant's proposed testimony would not have addressed any issue with respect to prejudice. Accordingly, any error was harmless.

The judgment is affirmed as to the convietion for sale of an unregistered security, as is the order denying postconviction relief, The judgment is reversed as to the convictions for securities fraud and conspiracy to commit securities fraud, and the case is remanded to the trial court for a new trial on those counts.

Judge KAPELKE and Judge VOGT concur.


author: Judge DAVIDSON.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Frank R. MATA, Defendant-Appellant.
    No. 00CA0923.
    Colorado Court of Appeals, Div. V.
    March 28, 2002.
    As Modified on Denial of Rehearing May 16, 2002.
    Certiorari Denied Oct. 21, 2002.

      Ken Salazar, Attorney General, John J. Fuerst, III, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Martin Gerra, Deputy State Public Defender, Denver, Colorado, for Defendant, Appellant.
   Opinion by

Judge DAVIDSON.

Defendant, Frank R. Mata, appeals from a judgment of conviction entered on a jury verdict finding him guilty of one count of sexual assault on a child and two counts of sexual assault on a child with crime of violence. Defendant also appeals certain aspects of his sentence. We affirm the judgment and sentence and remand to the trial court for a hearing on the amount of restitution and for correction of the mittimus.

The victim was the younger sister of defendant's girlfriend and was ten years old at the time of the offenses. The victim testified at trial to three instances of abuse, two of which involved penetration.

The first trial ended in a mistrial because of an outburst by defendant. The second trial also ended in a mistrial because the jury could not reach a unanimous verdict. The third trial resulted in the convictions at issue here.

I.

This case was prosecuted by a special prosecutor from El Paso County. Defendant argues that, because his attorney had been issued a traffic citation in that judicial district, his attorney provided ineffective assistance because he had a conflict of interest. We disagree.

In general, a conflict of interest exists, inter alia, when an attorney's ability to represent a client is materially limited by the attorney's own interests. See Colo. RPC 1.7(b). Such a conflict can exist when defense counsel has been charged with a crime and is susceptible to prosecution, while representing the client, by those responsible for the client's prosecution. See People v. Waddell, 24 P.3d 3 (Colo.App.2000). In that instance, the conflict arises because counsel would be " 'subject to the encumbrance that the prosecutor might take umbrage at a vigorous defense' of defendant and become more ardent in the prosecution of defense counsel." People v. Edebohls, 944 P.2d 552, 556 (Colo.App.1996)(quoting People v. Castro, 657 P.2d 932, 945 (Colo.1988)). See Thompkins v. Cohen, 965 F.2d 330 (7th Cir.1992)(fear of retaliation for zealous advocacy must be shown before conflict is found).

Furthermore, when, as here, the issue was not addressed by the trial court, a defendant must show that an actual, rather than potential, conflict of interest existed and that the actual conflict adversely affected his lawyer's performance. A showing of prejudice is not required, but the conduct of the trial must have been affected. See Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); see also People v. Castro, supra.

In People v. Edebohls, supra, a division of this court found an actual conflict of interest when defense counsel faced charges of tampering with a witness and bribery, and the same district attorney's office was responsible for the prosecution of both the defendant and defense counsel. Similarly, in People v. Waddell, supra, another division of this court determined that an actual conflict of interest existed when defense counsel was being prosecuted on a felony charge for introduction of contraband into the county jail by the same district attorney who was prosecuting the defendant, and the same judge presided over both cases.

Here, however, defense counsel had been charged merely with a traffic infraction for failure to obey a traffic signal and a misdemeanor traffic offense for failure to present proof of insurance. In our view, these charges are not sufficiently similar to those in Edebohis and Waddell to establish an actual conflict. See also United States v. McLain, 823 F.2d 1457 (11th Cir.1987)(attorney charged with perjury and bribery under Hobbs Act); United States v. DeFalco, 644 F.2d 132 (3d Cir.1979)(attorney convicted of mail fraud, which led to disbarment).

First, the failure to obey a traffic signal is a civil traffic infraction, not a criminal offense. See § 42-4-1701(1), C.R.S.2001.

Second, misdemeanor traffic offenses, such as the one charged here, are classified separately from other misdemeanors and felonies, compare § 42-4-1701, C.R.8.2001 (traffic offenses), with § 18-1-104(1), (2), C.R.S.2001 (felonies, misdemeanors, and petty offenses), and are significantly less serious than the felonies at issue in Edebohis and Waddell. Indeed, although an attorney must report criminal convictions to the regulation counsel, a misdemeanor traffic offense or traffic ordinance violation need not be reported, unless it involves the use of alcohol or drugs. See C.R.C.P. 251.20(b).

Finally, a charge of failure to produce proof of insurance is subject to dismissal upon presentation of documentation showing that proper insurance was in effect at the time of the alleged violation, see § 42-4-1409(8), (6), C.R.8.2001, and the record here, we note, indicates that this charge against defense counsel was dismissed.

Under these cireumstances, we conclude that no actual conflict of interest was created by the pendency of these charges. Prosecution for failure to obey a traffic signal and failure to present proof of insurance does not put counsel in fear of his or her own zealous advocacy or in a position "inherently conducive to and productive of divided loyalties." See People v. Castro, supra, 657 P.2d at 945; cf. United States v. DeFalco, supra, 644 F.2d at 136 (federal mail fraud charges create "inherent emotional and psychological barriers" to counsel's ability to compete "vigorously with the government").

Nor does defendant show any adverse ef-feet on counsel's representation. Defendant does not point to any instance where counsel's actions might have been hindered by concern for his own traffic violation charges. See Cuyler v. Sullivan, supra; United States v. Baker, 256 F.3d 855 (9th Cir.2001)(bare allegation of conflict based on attorney's cooperation and plea on unrelated charges insufficient basis on which to predicate actual conflict); United States v. Balzano, 916 F.2d 1273 (7th Cir.1990){(no conflict where defendant did not show actual effect on trial); Sanchez v. State, 296 Ark. 295, 756 S.W.2d 452 (1988) (same); cf. United States v. Mclain, supra (actual conflict where defense counsel had personal interest in extending duration of defendant's trial).

IL.

Defendant's adult daughter testified that, when she was nine or ten, defendant sexually abused her multiple times. This abuse included digital penetration and fondling, but not penile penetration. Defendant contends that the trial court erred in admitting this testimony as evidence as prior similar acts. We disagree.

A trial court's rulings regarding the admissibility of evidence of similar acts will be upheld absent an abuse of discretion. People v. Rodriguez, 914 P.2d 230 (Colo.1996); People v. Martinez, 36 P.3d 154 (Colo.App.2001). In cases involving sexual assault on a child, evidence of prior similar acts by a defendant may be admissible pursuant to § 16-10-301, C.R.S.2001, and CRE 404(b).

As pertinent here, § 16-10-3018), C.R.S. 2001, authorizes the introduction of evidence of prior sexual assaults to show intent and to refute the defense of recent fabrication. Section 16-10-8301 reflects a policy judgment that there is a need in sexual assault cases to make similar transaction evidence more readily available. People v. Duncan, 33 P.3d 1180 (Colo.App.2001).

CRE 404(b) also provides for use of this evidence to prove intent. People v. Spoto, 795 P.2d 1314 (Colo.1990); People v. Duncan, supra. Under CRE 404(b), evidence is admitted when it relates to a material fact; the evidence has logical relevance in that it tends to make the existence of the material fact more probable or less probable than it would be without the evidence; the logical relevance of the evidence does not depend on an intermediate inference that the defendant has a bad character; and the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. People v. Spoto, supra.

Here, defendant's theory was that the victim fabricated her stories. Because intent is the "other side of the coin" of a fabrication or consent defense, defendant's intent was a material fact as to each offense. See People v. Martinez, supra, 36 P.3d at 159 (allowing evidence of prior sexual assaults to counter defense of fabrication and consent).

We disagree with defendant that the charged offenses and the prior acts did not share enough significant features to render the evidence probative. Defendant's daughter and the victim were of a similar age at the time of the assaults, both victims were familiar to defendant and were molested in defendant's home, the progression of abuse was similar, and defendant threatened both children to maintain secrecy. See People v. Martinez, supra.

Moreover, contrary to defendant's contention, the evidence was relevant independent of any inference of defendant's propensity or bad character. See People v. Duncan, supra; People v. Martinez, supra; see also People v. Spoto, supra (under doctrine of chanees, prior similar acts have logical relevance independent of showing of bad character). And, the record supports the trial court's determination that the probative value of this evidence in assisting the jury to analyze defendant's state of mind outweighed the danger of unfair prejudice. See People v. Duncan, supra; People v. Delgado, 890 P.2d 141 (Colo.App.1994)(issue addressed to trial court's discretion).

IIL.

A doctor who examined the victim after the abuse testified at trial that the victim's hymen was disrupted and that she had vaginal discharge unusual for a prepubescent girl. Relying on these findings, the expert testified that, although she could not pinpoint a date, it was her opinion that the victim had been sexually abused.

During a pretrial investigation, the victim had disclosed that, prior to the assaults by defendant, her other sister's boyfriend had broken into the victim's house while intoxicated and had lain on top of her. At trial, defendant contended that evidence of this incident was admissible at trial under § 18-3-407(1)(b), C.R.S.2001, as an alternative explanation for the expert's medical findings. The trial court disagreed, finding it irrelevant because there was no evidence of penetration by the boyfriend. Defendant contends that this ruling was error. We disagree.

Section 18-3-407(1), C.R.S.2001, cere-ates a presumption that evidence relating to a rape victim's sexual conduct is irrelevant to the proceedings. People in Interest of K.N., 977 P.2d 868, 872 (Colo.1999). Prior sexual victimization is considered "sexual conduct" under the rape shield statute. People v. Aldrich, 849 P.2d 821 (Colo.App.1992).

The presumption does not apply to "[elvi-dence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease, or any similar evidence of sexual intercourse offered for the purpose of showing that the act or acts charged were or were not committed by the defendant." Seetion 18-3-407(1)(b).

However, when the relevancy of evidence depends upon the fulfillment of a condition of fact, the trial court "shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition." CRE 104(b). Under such cireumstances, the court must find that the party tendering the evidence made a prima facie showing that the conditional fact occurred. People v. Garner, 806 P2d 366 (Colo.1991).

Here, although it did not specifically reference CRE 104(b), the trial court correctly determined that the incident with the sister's boyfriend was relevant under § 18-3-407(1)(b) only if penetration had occurred then. See People v. Harris 43 P.3d 221, (Colo.2002)(defendant failed to make preliminary showing of relevance sufficient to rebut rape shield statute's presumption of irrelevance).

Furthermore, the record supports the court's finding that penetration had not occurred. Specifically, at the in camera hearing on the issue, the victim stated only that the boyfriend "laid on me, and that's all that happened with me." She also testified that both of them had on their clothes and that she felt no pain other than "in my chest, because he was ... heavy." On cross-examination, the victim again denied that she had ever stated that the boyfriend had "put anything inside [her]." No other evidence was presented to support defendant's contention. Although defense counsel offered that a social worker, who was not present at the in camera hearing, would testify that the victim told her penetration had occurred, the written report from the social worker did not include such an allegation. Moreover, the social worker ultimately did not testify, and defendant did not request a continuance to obtain her presence or otherwise object to the determination of the issue without her testimony.

IV.

Defendant next contends that the sentences imposed improperly exceeded the minimum term authorized by the Colorado Sex Offender Lifetime Supervision Act of 1998 (the Act). We disagree.

Defendant was sentenced to fifteen years to life and ten years to life for the two counts of sexual assault on a child with crime of violence and five years to life for sexual assault on a child.

Under the Act, § 16-18-801, et seq., C.R.98.2001, a sex offender must be sentenced to "an indeterminate term of at least the minimum of the presumptive range ... and a maximum of the sex offender's natural life." Section 16-13-804(1)(a), C.R.S.2001. And, under § 16-13-804(1)(b), when an offender is convicted of a sex offense that constitutes a crime of violence, the trial court must sentence the offender to "an indeterminate term of at least the midpoint in the presumptive range for the level of offense committed and a maximum of the' sex offender's natural life."

Initially defendant contends that the presumptive ranges to which § 16-13-804(1) applies were two to six years. We disagree. The trial court accurately calculated the presumptive ranges at two to eight years for the child sexual assault offense and five to sixteen years for each of the two child sexual assault offenses with crime of violence.

Specifically, the normal presumptive range for class four felony convictions is two to six years. Section 18-1-105(1)(a)(V), C.R.S. 2001. However, because sexual assault on a child also constitutes an extraordinary risk crime, the maximum presumptive term must be increased by two years, changing the maximum from six to eight years. Section 18-1-105(9.7)(a), C.R.8.2001. Therefore, for child sexual assault without crime of violence, the presumptive range is two to eight years.

For defendant's two sexual assault with crime of violence counts, the sentencing range is the midpoint of the presumptive range up to twice the maximum of the presumptive range. Section 16-11-8309(1)(a), C.R.S.2001. Contrary to defendant's assertion, the presumptive range is first increased under § 18-1-105(9.7)(a) before it is doubled under § 16-11-309(1)(a). People v. Greymountain, 952 P.2d 829 (Colo.App.1997). The presumptive range for defendant's two sexual assault offenses with crime of violence is, therefore, five to sixteen years.

Applying § 16-13-804(1)(a),(b) to these presumptive ranges, the court properly sentenced defendant to fifteen years to life and ten years to life for the two counts of sexual assault on a child with crime of violence and five years to life for sexual assault on a child. Although we note that, for the child sexual assault with crime of violence counts, the midpoint of the presumptive range under § 16-183-804(1)(b) is ten years and six months, and the court sentenced defendant to a minimum of ten years on one count, the people have not raised any issue of illegality.

We also disagree with defendant's contention that under § 16-183-804(1)(b), the court cannot sentence a defendant to a minimum that is more than the midpoint in the presumptive range. We agree with the reasoning of the division of this court in People v. Smith, 29 P.3d 347 (Colo.App.2001), interpreting § 16-13-804(1)(a), and conclude that the General Assembly's use of the phrase "at least" in § 16-18-804(1)(b) allows the trial court to impose an increased minimum.

v.

Defendant next contends that the trial court erred in ordering him to pay restitution and transcript costs. We agree in part.

During a sentencing hearing on April 3, 2000, the court ordered defendant to pay restitution and costs. The minute order reflects that the court entered an order for payment of fines, fees, and costs in a total amount of $2980.20. This amount included $1580.20 specifically for court transcripts. The court did not order a specific restitution amount at that time, but granted the prosecution thirty days to provide restitution figures. The court then signed an order, dated May 1, ordering defendant to make restitution to the victim of $896.19. The mittimus was amended on May 2, 2000, to add the restitution.

On April 17, the court granted defendant's motion to proceed on appeal in forma pau-peris and receive free transcripts.

A.

While not disputing the amount, defendant first argues that, because the court granted his request to proceed in forma pau-peris on appeal, the imposition of costs for transcripts should be struck from the mitti-mus. We disagree.

Section 16-11-501, C.R.S.2001, requires the court to impose the costs of prosecution upon a convicted defendant. Those costs include "[alny fees of the court reporter for all or any part of a transeript necessarily obtained for use in the case, including the fees provided for in section 16-18-101(2) and including the fees for a transcript of any preliminary hearing." Section 16-11-501(2)(d), C.R.9.2001. Although it is unclear from the record which specific transcripts are included in the costs, it is clear that they were intended as a cost of prosecution, not appeal. The court's order allowing the defendant to proceed in forma pauperis on appeal and granting a free transcript for appeal is independent of the requirement to impose the costs of prosecution upon a convicted defendant.

B.

However, we agree with defendant that he did not receive proper notice of or opportunity to contest the court's determination of the amount of restitution.

Colo. Sess. Laws 1998, ch. 172, § 16-11-102(4) at 519, in effect at the time of defendant's sentencing, required that "[the amount of restitution equal to the full pecuniary loss caused by the defendant shall be imposed by the court at the time of sentencing and shall be endorsed upon the mitti-mus." This statute directed the court to determine the amount of restitution owed, if any, at the time of sentencing. People v. Strock, 931 P.2d 538 (Colo.App.1996). Under that statutory scheme, the defendant is to be given the opportunity, at the sentencing hearing, to controvert the victim's claimed monetary damages. See People v. Johnson, 780 P.2d 504 (Colo.1989).

Here, the court did not determine a restitution amount at the sentencing hearing, but a month later simply entered an order specifying the amount. Thus, defendant had no opportunity to controvert the victim's claimed monetary damages. Cf. People v. Miller, 830 P.2d 1092 (Colo.App.1991)(defendant waived right to contest restitution by failing to object when presented with late presentence report); People v. Powell, 748 P.2d 1355 (Colo.App.1987)(defendant waived objection to restitution amount by failing to provide contrary evidence when given opportunity to do so at restitution hearing).

VI.

Defendant next contends that the mittimus must be corrected to delete separate sentences for the crime of violence counts. The prosecution agrees, and so do we.

The crime of violence statute, § 16-11-309, defines sentencing standards and does not create separate substantive offenses. The application of the statute is triggered only after a defendant has been found guilty of the substantive crime, and the special findings relate only to the sentencing for the substantive offense. People v. Espinoza, 669 P.2d 142 (Colo.App.1983), aff'd, 712 P.2d 476 (Colo.1985).

Here, as discussed, the crime of violence counts were properly applied to double the maximum in the presumptive range for two counts of sexual assault. However, the mitti-mus incorrectly imposes separate ten- and fifteen-year sentences for the crime of violence counts.

The judgment of conviction and the sentence are affirmed, except that the case is remanded to the trial court for a hearing on the amount of restitution and for correction of the mittimus to delete the separate sentences for the erime of violence counts.

Judge CASEBOLT and Judge NIETO concur.