author: Judge TAUBMAN.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Christopher T. SIMPSON, Defendant-Appellant.
    No. 00CA0475.
    Colorado Court of Appeals, Div. V.
    June 21, 2001.
    As Modified on Denial of Rehearing Oct. 25, 2001.
    As Corrected Feb. 13, 2002.
    Certiorari Granted July 22, 2002.

      Ken Salazar, Attorney General, John D. Seidel, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.
    Kurt A. Metsger, Denver, CO, for Defen-danL-Appellant.
   Opinion by

Judge TAUBMAN.

Defendant, Christopher T. Simpson, appeals from the trial court’s order denying his Crim. P. 35(c) motion. We reverse and remand.

This conviction arose out of an altercation between defendant, a seventeen-year-old juvenile, and another juvenile while both were incarcerated at a detention facility. The other juvenile apparently provoked defendant and struck him first. A fight ensued, and officers attempted to intervene. Defendant grabbed a chair and swung it at the juvenile, hitting an officer on the hand.

Defendant was charged with second degree assault on a peace officer. Pursuant to § 19-2-517(l)(a)(IV), C.R.S.2000, the People filed an information directly in the district court, subjecting defendant to prosecution as an adult.

At defendant’s arraignment, the trial court advised him of the right to counsel pursuant to Crim. P. 5. Defendant indicated to the court that he planned to obtain counsel; however, at a subsequent appearance he notified the court that he intended to proceed pro se.

At the providency hearing, the trial court advised defendant of his right to counsel and his forfeiture of various constitutional rights, including the right to an attorney, as a consequence of pleading guilty. Defendant responded that he understood these rights and that he desired to waive them. Thereafter, defendant entered a plea of guilty. However, defendant was neither represented by counsel nor was any parent, guardian, or other interested adult present at the provi-dency hearing.

The trial court sentenced defendant to twelve years in the Department of Corrections (DOC) to be served consecutively to a sentence he was already serving.

Defendant filed a Crim. P. 35(c) motion claiming that the absence of a parent, guardian, or guardian ad litem (GAL) at the provi-dency hearing rendered the plea invalid and that his constitutional rights were not waived knowingly and voluntarily. The trial court, however, disagreed and denied the motion.

I. Validity of Guilty Plea

Relying upon § 19-2-511(1), C.R.S. 2000, of the Children’s Code, defendant contends that the trial court erred in failing to vacate his guilty plea because the absence of a parent, guardian, or guardian ad litem (GAL) at the plea hearing rendered the plea invalid. We disagree.

Section 19-2-511(1) expressly requires parental presence at a custodial interrogation, and failure to comply with this requirement results in the inadmissibility of incriminating statements. Nicholas v. People, 973 P.2d 1213, 1219 (Colo.1999).

However, this appeal does not involve suppression of statements or waiver of counsel at an interrogation; rather, it involves the validity of defendant’s guilty plea. Because the plain language of § 19-2-511(1) only refers to procedures which must be followed to ensure the admissibility of a juvenile’s statements made during a custodial interrogation, we proceed no further with this contention. We agree with the trial court that the statute is not applicable here. See People v. Rea, 7 P.3d 995, 998 (Colo.App.1999).

II. Knowing and Voluntary Waiver

However, we do agree with defendant’s contention that the trial court erred in failing to set aside his guilty plea because he did not enter it knowingly and voluntarily.

A presumption of validity attaches to a judgment of conviction. People v. Vigil, 983 P.2d 805 (Colo.App.1999).

In adult criminal proceedings, the Fourteenth Amendment’s due process clause requires the court to determine whether a defendant knowingly and voluntarily entered a valid guilty plea. Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274, 279 (1969); People v. Schneider, 25 P.3d 755 (Colo.2001); People v. Weed, 830 P.2d 1095,1097 (Colo.App.1991).

Juveniles are equally “entitled to rely upon the guarantee of fundamental fairness inherent in the due process clauses of the federal and Colorado constitutions when asked to admit the commission of criminal acts.” People v. M.A.W., 651 P.2d 433, 436 (Colo.App.1982); see also In re Gault, 387 U.S. 1, 30, 87 S.Ct. 1428, 1445, 18 L.Ed.2d 527, 548 (1967)(extending due process protection, such as right to counsel, to juveniles). As with adults, a juvenile’s guilty plea is only valid if it is entered knowingly and voluntarily. People v. Cunningham, 678 P.2d 1058, 1061 (Colo.App.1983).

The Supreme Court has expressed special concern for protecting the constitutional rights of juveniles in criminal proceedings due to their immaturity and limited mental capacity to understand their legal rights. See In re Gault, 387 U.S. at 55, 87 S.Ct. at 1458, 18 L.Ed.2d at 561 (if counsel is not present in custodial interrogation involving juvenile, “the greatest care must be taken to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair”); Gallegos v. Colorado, 370 U.S. 49, 54, 82 S.Ct. 1209, 1212-13, 8 L.Ed.2d 325, 329 (1962)(where juvenile subjected to custodial interrogation without parent or counsel, “[h]e cannot be compared with an adult in full possession of his senses and knowledgeable of the consequences of his admissions.... A lawyer or an adult relative or Mend could have given the petitioner the protection which his own immaturity could not. Adult advice would have put him on a less unequal footing with his interrogators.”); Haley v. Ohio, 332 U.S. 596, 599-600, 68 S.Ct. 302, 303-04, 92 L.Ed. 224, 228 (1948)(in finding that fifteen-year-old did not knowingly and voluntarily waive right to counsel, Court stated, “[wjhat transpired would make us pause for careful inquiry if a mature man were involved. And when, as here, a mere child — an easy victim of the law — is before us, special care in scrutinizing the record must be used.... He needs counsel and support if he is not to become the victim first of fear, then of panic.”).

Similarly, it is well recognized in Colorado, both in civil and criminal law, that juveniles are presumed to have less capacity than adults to understand their rights and privileges. See, e.g., Colo. Const, art. VII, § 1 (person under eighteen has no right to vote); § 13-22-101, C.R.S.2000 (person under eighteen does not have competence to enter into contracts, to manage estates, to sue and be sued, or to make decisions regarding his or her own body, such as donating blood or organs); § 14-2-106(l)(a)(I), C.R.S.2000 (person under eighteen needs to obtain parental consent before receiving marriage license); § 19-2-511(1), (juveniles subjected to custodial interrogation required to have parent or guardian present before waiving right to counsel); C.R.J.P. 3(a) (advisement for juveniles entering plea requires presence of a parent or guardian at initial appearance); Nicholas, 973 P.2d at 1219 (recognizing that children have less capacity than adults to understand legal rights and therefore need special assistance).

In acknowledging this special need to protect a juvenile’s legal rights, additional safeguards, such as the mandatory presence of a parent, guardian, or counsel, have been established or recommended to ensure that a juvenile knowingly and voluntarily waives his or her constitutional rights. Model Rules for Juvenile Courts Rule 39 (1969)(advocating that waiver of right to counsel be made in the presence of parent, guardian or custodian); Institute of Judicial Administration — American Bar Association, Juvenile Justice Standards Annotated §§ 3.6, 3.7, 5.1, 6.1, 6.2 (Robert E. Shepard, Jr. ed., 1996) (recommending that the right to counsel not be waivable, that only mature juveniles may waive other rights after consultation with both counsel and parent, and that a juvenile court not accept a guilty plea unless juvenile has been given effective assistance of counsel and court inquires from parents who are present in court whether they concur in the plea decision); Penelope Alysse Brobst, The Court Giveth and the Court Taketh Away: State v. Hernandez — Returning Louisiana’s Children to an Adult Standard, 60 La. L.Rev. 605, 614 n. 81 (2000)(noting that thirteen states require parental presence in custodial interrogations); Minnesota Supreme Court Advisory Task Force on the Juvenile Justice System: Trial Report January 1991, 20 Wm. Mitchell L.Rev. 595, 605-06 (1994)(recommending mandatory counseling for juveniles charged with felonies prior to waiver of counsel or entry of plea and procedures to promote parent’s or guardian’s participation in these decisions); see — also Wallace J. Mlyniec, A Judge’s Ethical Dilemma: Assessing a Child’s Capacity to Choose, 64 Fordham L.Rev. 1873, 1909 (1996)(based on child development theories, recommending that courts engage in an “informed consent dialogue” with juveniles to determine whether they are in fact knowingly and voluntarily waiving their constitutional rights).

With respect to the validity of a guilty plea for an adult, Crim P. 11 prescribes procedures that a court must follow to assure that constitutional requirements are met. An affirmative showing of compliance with Crim. P. 11 is generally sufficient to satisfy due process. People v. Drake, 785 P.2d 1257, 1268 (Colo.1990); People v. Chippewa, 713 P.2d 1311, 1313 (Colo.App.1985), aff'd, 751 P.2d 607 (Colo.1988).

Although no formalistic litany is required before a court may accept a plea of guilty, the record as a whole must demonstrate the trial court has made the defendant aware of his or her various rights and explain the critical elements in terms understandable to the defendant. Whether an advisement is sufficient depends on factors such as the complexity of the charges, the personal characteristics of the defendant, and whether the defendant is represented by counsel. See People v. District Court, 868 P.2d 400 (Colo.1994).

While Crim. P. 11 procedures have been deemed constitutionally sufficient to protect adult defendants, more has been required for juveniles. Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 2572, 61 L.Ed.2d 197, 212 (1979). The standards “guaranteeing the juvenile’s constitutional rights” when entering a guilty plea are codified in C.R.J.P. 3. Although substantially equivalent to Crim. P. 11, C.R.J.P. 3 specifically requires that both the juvenile and his or her parents be fully advised by the court and that they understand the applicable constitutional rights. People in Interest of J.F.C., 660 P.2d 7, 8 (Colo.App.1982).

Requiring adult presence at an initial appearance is of “critical significance to any knowing and intelligent waiver of a constitutional right by a juvenile.” People in Interest of S.A.R., 860 P.2d 573, 573 (Colo.App.1993); J.F.C., 660 P.2d at 8. The presence of a parent or guardian at a juvenile’s providency hearing assures the court that the juvenile is provided with parental guidance and moral support, as well as some assurance that any waiver of the juvenile’s rights will be made knowingly and intelligently. Cunningham, 678 P.2d at 1060; J.F.C., 660 P.2d at 8; see People v. Thorpe, 641 P.2d 935, 941 (Colo.1982)(consultation with juvenile’s mother considered in determining whether juvenile waived right to counsel).

Similarly, advice of and representation by counsel have been recognized by the Colorado General Assembly as a “critical element” in the effective representation of minors. See § 13-91-102(l)(a), C.R.S.2000 (legislative, declaration in reference to the establishment of the Office of the Child’s Representative). Defense counsel facilitates a more effective waiver of a juvenile’s rights by objectively informing and advising the juvenile and the parent. See Institute of Judicial Administration American Bar Association, Juvenile Justice Standards: Pre Trial Court Proceedings § 5.1 commentary (1980) (discussing reasons for advocating nonwaivable mandatory counsel for juveniles).

We disagree with the People’s contention that the plea here was valid because the trial judge neutrally advises juvenile defendants as to the consequence of various choices and therefore serves as an adequate substitute for a parent, guardian, or attorney. Because of that very neutrality, the trial court cannot provide the same support and guidance to the defendant as would a parent, guardian, or an attorney. Cf People v. Arguello, 772 P.2d 87 (Colo.1989) (defendant has right to self representation, but trial court should engage in careful inquiry of defendant to assure that defendant is capable of representing himself or herself.)

As it does with an adult’s plea, the court must evaluate the “totality of circumstances” to determine whether a juvenile knowingly and voluntarily entered a plea. Fare, 442 U.S. at 725, 99 S.Ct. at 2572, 61 L.Ed.2d at 212 (“We discern no persuasive reasons why any other approach [other than totality of circumstances] is required where the question is whether a juvenile has waived his rights, as opposed to whether an adult has done so.”); see Nicholas, 973 P.2d at 1222 (Kourlis, J., dissenting)(noting that the majority and dissent agree that Colorado law does not preclude a juvenile from ever waiv-mg his or her right to counsel and that a totality of circumstances analysis adequately protects Fifth Amendment rights of juveniles); Thorpe, 641 P.2d at 940; Cunningham, 678 P.2d at 1060-61.

Contrary to the People’s contention, the application of a totality of the circumstances test does not leave trial courts facing a juvenile’s request to plead guilty “wondering what facts they must consider outside of the requirements of Crim. P. 11.” The Nicholas court applied a totality of the circumstances test to a juvenile’s waiver of the right to counsel. Similarly, trial courts apply a totality of the circumstances test in various other contexts as well. See People in Interest of J.L.M., 8 P.3d 435 (Colo. 1999) (totality of circumstances test used to determine validity of juvenile’s statement allegedly obtained in violation of his rights under Miranda v. Arizona); People v. Paquin, 811 P.2d 394 (Colo.1991) (whether an affidavit based on information provided by confidential informant satisfies constitutional standard of probable cause must be evaluated on basis of totality of circumstances test); People v. Staten, 746 P.2d 1362 (CoIo.App.1987) (totality of circumstances test used to determine reliability of witness’ out of court identification of defendant).

In ensuring an effective waiver of constitutional rights by a juvenile at a provi-dency hearing, and applying a totality of circumstances test, the trial court must consider such factors as the juvenile’s age, previous court experience, education, background, intelligence, and capacity to understand the nature of his or her rights and the consequences of waiving those rights. Fare, 442 U.S. at 725, 99 S.Ct. at 2572, 61 L.Ed.2d at 212; see S.A.R., 860 P.2d at 574; J.F.C., 660 P.2d at 9. In addition, a significant factor the court must consider is whether the juvenile had the opportunity to consult with a parent, guardian, or counsel before entering a plea or whether such person accompanied the juvenile to the plea hearing. See Thorpe, 641 P.2d at 941; S.A.R., 860 P.2d at 574; see— also State v. Farrell, 145 N.H. 733, 766 A.2d 1057, 1062 (2001)(when parent not notified of custodial interrogation, lack of parental presence becomes “significant factor”); State v. Presha, 163 N.J. 304, 748 A.2d 1108, 1114 (2000)(in custodial interrogation, absence of parent considered “highly significant factor”); State ex rel. J.M. v. Taylor, 166 W.Va. 511, 276 S.E.2d 199, 202 (1981)(eiting several cases that use advice of parent or counsel as totality factor in determining waiver). See— also Juvenile Justice Standards Annotated, supra, §§ 6.1, 6.2.

The trial court should also consider whether a juvenile defendant has meritorious defenses to the charges against him or her. See Cunningham, 678 P.2d at 1060 (where juvenile represented by counsel, failure to assert meritorious defense should be considered); J.F.C., 660 P.2d at 9 (same).

A trial court’s factual determination of whether a juvenile has voluntarily and knowingly waived any rights will be upheld if supported by the record. Thorpe, 641 P.2d at 941.

Further, a juvenile’s constitutional rights are not altered merely because he or she is charged directly in adult court rather than in juvenile court. See Nicholas, 973 P.2d at 1217-19 (where juvenile in district court by direct filing, court finds applicable § 19-2-511 requiring presence of parents at interrogation); People v. S.M.D., 864 P.2d 1103, 1105 (Colo.1994)(where juvenile, charged as an adult and tried in district court, argued certain interpretation of a statute in Children’s Code, court applied statute and did not distinguish juvenile’s status as an adult offender from that of a juvenile offender); Thorpe, 641 P.2d at 941 (where juvenile directly filed against in district court, court considered presence of mother at interrogation in determining whether totality of circumstances showed valid waiver of right to counsel); see — also Haley, 332 U.S. at 599-601, 68 S.Ct. at 303-04, 92 L.Ed. at 229 (considering, in adult proceeding, constitutional right to counsel afforded to juvenile and absence of an adult during interrogation).

Regardless of the venue in which the juvenile is charged, the Supreme Court has recognized that adolescents are “less mature and responsible than adults,” Thompson v. Oklahoma, 487 U.S. 815, 834,108 S.Ct. 2687, 2698, 101 L.Ed.2d 702, 717 (1988), and “often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them.” Bellotti v. Baird, 443 U.S. 622, 635, 99 S.Ct. 3035, 3044, 61 L.Ed.2d 797, 808 (1979). Thus, even if a juvenile is charged in adult court, it does not follow that he or she must be treated as an adult in all respects. See Richard E. Red-ding, Juveniles Transferred to Criminal Court: Legal Reform Proposals Based on Social Science Research, Utah L.Rev. 709, 722 (1997)(“Children’s immaturity is ignored when the law holds them to adult standards of conduct by transferring them for trial in adult court.”); Malcolm C. Young, U.S. Dep’t of Justice, Office of Justice Programs, Bureau of Justice Assistance, Providing Effective Representation for Youth Prosecuted as Adults 1, 4 (2000)(Model Program Advisory Team emphasized that representation of a child in adult court “is qualitatively different from representing an adult”); Malcolm C. Young, Representing a Child in Adult Criminal Court, Crim. Just. 15-20 (Spring 2000)(describing how at every critical point of adult criminal process, children are ill-equipped to defend themselves or be defended even by competent counsel).

We recognize that in People v. Juvenile Court, 915 P.2d 1274, 1276-77 (Colo.1996), the supreme, court stated that “protections typically accorded juveniles are lost” upon transfer or direct filing. However, the court relied there upon a statute in the Children’s Code expressly permitting a juvenile to be held in an adult detention facility pending criminal proceedings in district court. People v. Juvenile Court, 915 P.2d at 1277. Here, in contrast, no specific statute or rule precludes consideration of a totality of circumstances test in assessing the validity of the juvenile defendant’s plea. Therefore, People v. Juvenile Court is distinguishable.

Here, while the trial court gave a proper Crim P. 11 advisement, it did not specifically evaluate the totality of the circumstances surrounding defendant’s waiver of his constitutional rights.

The court elicited from defendant his age, education, whether he had any legal training, and whether he was under the influence of drugs or alcohol. The record also shows that the court had access to defendant’s juvenile record prior to sentencing. However, the court did not inquire into whether defendant had consulted with an attorney before entering the plea or whether defendant had conferred or wished to confer with a parent, guardian, or GAL prior to entering a guilty plea.

The record further shows that, although defendant was not in contact with his father, he knew his mother’s whereabouts and had a good relationship with her. Even assuming his mother was uninvolved, the court had the discretion to appoint a GAL, but did not do so. See § 19-2-517(5), C.R.S.2000.

Further, defendant contends that he had meritorious defenses he was unable to pursue because he lacked assistance of counsel or advice from a parent. Specifically, defendant asserts that the charges against him resulted from an altercation with another juvenile, during which an officer was hit trying to break it up. Thus, defendant asserted the existence of meritorious defenses, cf. J.F.C., 660 P.2d at 9.

Additionally, the record reveals that defendant had only completed the sixth grade, and not the tenth grade as he reported to the trial court. Defendant also has alleged that he suffers from a bipolar personality disorder, but the trial court did not pursue this matter during the providency hearing.

In applying the above principles and the totality of circumstances standard to the record on appeal, we conclude that defendant did not knowingly and voluntarily waive his constitutional rights when he entered a guilty plea.

We also conclude that the trial court did not take sufficient steps to ensure the effective waiver of defendant’s constitutional rights and therefore, the guilty plea must be vacated.

Accordingly, the order is reversed, and the case is remanded to allow defendant to withdraw his plea and for further proceedings consistent with this opinion.

Judge ROTHENBERG and Judge ROY concur.


source: Caselaw Access Project

author: Judge DAILEY.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Sireino Joe MARTINEZ, Defendant-Appellant.
    No. 00CA0175.
    Colorado Court of Appeals, Div. III.
    Aug. 30, 2001.
    As Modified on Denial of Rehearing Nov. 1, 2001.
    Certiorari Granted Aug. 5, 2002.

      Ken Salazar, Attorney General, Evan W. Jones, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.
    Linda Perkins Cooke, L.L.C., Linda Perkins Cooke, Boulder, CO, for Defendants Appellant.

       Sitting by assignment of the Chief Justice under provisions of the Colo. Const, art. VI, Sec. 5(3), and § 24-51-1105, C.R.S.2000.

   Opinion by

Judge DAILEY.

Defendant, Sireino Joe Martinez, appeals a judgment of conviction entered upon jury verdicts finding him guilty of possession of a schedule II controlled substance (cocaine), a class four felony, and possession of drug paraphernalia, a class two petty offense. Defendant also contests his habitual criminal adjudication and the ninety-six year sentence to the Department of Corrections. We affirm the judgment, reverse the sentence, and remand for resentencing.

I. Background

Two confidential informants purchased marijuana on several occasions from defendant’s son. On one of those occasions, defendant’s son reportedly told the informant that defendant was living with him and intended to take over drug trafficking in the area.

A third confidential informant told police that he had purchased a large quantity of methamphetamine, cocaine, and marijuana from defendant and that defendant told him that he planned to control drug trafficking in the area.

The police obtained a warrant to search the residence occupied by defendant, defendant’s son, the son’s girlfriend and child, and two of defendant’s friends. From the east bedroom, police seized a gun, money, and a small bag of marijuana; from the bathroom, a three-beam scale; from the freezer, a pound of marijuana; and from the west bedroom, seven pounds of marijuana, five bags of cocaine, five guns, ammunition, money, and drug paraphernalia.

Subsequently, defendant was charged with possession of a schedule II controlled substance (cocaine) with intent to distribute, possession of a schedule II controlled substance (cocaine), possession of marijuana with intent to distribute, possession of eight or more ounces of marijuana, possession of drug paraphernalia, one special drug offender count, and four habitual criminal counts.

At trial, defendant’s son admitted selling marijuana and owning the marijuana in the freezer as well as the items seized from the east bedroom. Both he and his girlfriend, however, testified that defendant and his two friends had been staying in the west bedroom and that everything the police seized from that bedroom belonged to defendant and his friends.

According to the son, defendant was dealing drugs out of the house. He testified that the marijuana in the freezer had come from defendant and that the number of people coming to the house for very short visits increased after defendant moved in. He denied ever dealing cocaine, but saw defendant hand a white powdery substance to someone around the time the police searched the residence.

The defense attempted to impeach defendant’s son by eliciting evidence that, while in jail, the son initially had claimed ownership of all the drugs and guns and that the son had lied to the police, had been convicted of perjury, and had an obvious motive to lie. Further, the defense elicited testimony that defendant was in the bathroom, not the west bedroom, at the time the police arrived to search the residence, that none of the personal items in the west bedroom could be positively identified as defendant’s, and that none of the fingerprints suitable for comparison on the drug packaging or weapons were defendant’s.

The jury found defendant guilty only of possession of a schedule II controlled substance (cocaine) and possession of drug paraphernalia. Because the jury also determined that he possessed or had available for use a deadly weapon during his crimes, defendant qualified as a special drug offender for sentencing purposes.

The trial court adjudicated defendant an habitual criminal based on evidence of four prior felony convictions. Giving effect to the jury’s special drug offender finding, the court treated defendant’s conviction of possession of a schedule II controlled substance as if it were a class two felony; and, multiplying by four the twenty-four-year maximum term in the presumptive range for a class two felony, the court sentenced him to ninety-six years’ incarceration.

II. Confidential Informants

Defendant contends that the trial court erred in refusing to reveal to him the identities of the confidential informants. We disagree.

At the hearing on his motion, defendant argued only for the disclosure of the identity of one confidential informant who purchased marijuana from defendant’s son. According to defendant, that informant could testify that defendant was not in the residence selling drugs during the times the informant was there and that informant possibly could provide evidence to impeach the testimony of defendant’s son.

The government has a qualified privilege to choose not to disclose the identity of a confidential informant. People v. District Court, 767 P.2d 1208, 1213 (Colo. 1989). However, the “privilege is not absolute and must give way “where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause.’ ” People ex rel. Sandstrom v. District Court, 904 P.2d 874, 877 (Colo.1995)(quoting Roviaro v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 628,1 L.Ed.2d 639, 645 (1957)).

A defendant has an initial burden of establishing a reasonable basis in fact to believe an informant is a likely source of relevant and helpful evidence to the accused. People v. District Court, supra, 767 P.2d at 1214. An accused is not entitled to the disclosure of the informant based upon the bare assertion that his or her defense requires it, or upon mere speculation or conjecture about the information the informant might have supplied. People v. District Court, supra, 767 P.2d at 1216.

If a defendant meets the initial burden, a court then must balance the public’s interest in protecting the flow of information to law enforcement authorities about criminal activity against defendant’s need to obtain evidence for the preparation of a defense. People v. District Court, supra, 767 P.2d at 1213.

Ultimately, the decision whether to order disclosure is committed to the sound discretion of the trial court. People v. District Court, supra, 767 P.2d at 1214; People v. Siegl, 914 P.2d 511, 516 (Colo.App.1996).

Here, the trial court refused to disclose the confidential informant’s identity because: (1) defendant had not been charged in connection with any of the prior controlled purchases; (2) the son’s sale of marijuana on another occasion was not inconsistent with defendant’s guilt on this occasion; and (3) defendant was given alternative means by which to elicit evidence of anything the confidential informant reported to the police.

Cases in which appellate courts have found “an abuse of discretion in the trial court’s refusal to order disclosure of an informant’s identity, have typically involved an informant who is an eyewitness or earwitness to the crime itself.” People v. Garcia, 752 P.2d 570, 579 (Colo.1988).

In this case, the confidential informant was an eyewitness or earwitness not to the crimes for which defendant was charged but to prior crimes committed by defendant’s son. The prosecution did not elicit evidence of those other crimes, and as the trial court found, such evidence was of little legitimate probative value to the defense.

We reject defendant’s argument that the trial court misapprehended the importance of another informant’s having witnessed a prior drug transaction involving defendant himself. The prosecution did not introduce evidence of this transaction, and defendant never indicated to the trial court that he was interested in this particular informant’s identity.

Nor are we persuaded by defendant’s arguments that testimony by the informants was necessary to impeach the son about the amount of marijuana and the number and type of weapons the son claimed to have had as of the time of the controlled purchases. In light of the alternative means by which defendant could elicit this evidence, and the abundance of otherwise available evidence to impeach the son, defendant failed to demonstrate a convincing need for disclosure of the informants’ identities. See People v. District Court, supra, 767 P.2d at 1215-16 (rejecting argument confidential informant necessary to provide impeachment evidence).

Under these circumstances, we perceive no abuse of the court’s discretion in failing to disclose the informants’ identities.

III. Drug Odor Evidence

Defendant next contends that the trial court erred in receiving expert evidence from a canine handler that a specially trained dog detected drug odor on the money. According to defendant, such evidence should not have been admitted absent some showing of the dog’s reliability in detecting drugs. We conclude that reversible error did not occur.

Assuming, without deciding, that defendant were correct about the type of foundation necessary for receipt of this type of evidence, see Brooks v. People, 975 P.2d 1105, 1114 (Colo.1999)(in assessing admissibility of proffered dog scent-tracking evidence, court should consider, among other things, “whether the dog was found by experience to be reliable in pursuing human tracks”), any error was rendered harmless by the canine handler’s subsequent testimony that she and the dog had worked together for five years, that the dog had performed approximately one thousand narcotics sniffs (one hundred on money), and that the dog had never alerted officers about money that was determined to be clean. See People v. Fuller, 788 P.2d 741, 745 — 46 (Colo.1990)(trial court’s failure to make requisite findings for admissibility of hearsay harmless where record supported its admission). See also United States v. Beckman, 222 F.3d 512, 523-24 (8th Cir.2000)(premature admission of co-conspirator statements harmless).

IV.Expert Testimony

Defendant contends that the trial court erred in allowing a police officer to provide expert testimony that the residence was being used as a distribution center for drugs. However, inasmuch as defendant was not convicted of a crime involving either distribution or intent to distribute drugs and the officer related no opinion about whether defendant possessed drugs, any error in this regard was not prejudicial. See People v. Quinn, 794 P.2d 1066, 1068 (Colo.App.1990) (challenged evidence related to counts as to which defendant was found not guilty).

V.Evidence of Habitual Criminality

Defendant contends that the evidence was insufficient to support his adjudication as an habitual criminal. In support of this contention, he argues that: (1) one set of documents was forwarded by a Nevada Department of Prisons’ case records manager rather than by the clerk of court where the judgment was entered; (2) that neither set nor another set of documents was sufficiently authenticated because no certification was made either that the judges’ signatures on the judgments of conviction were genuine or that they were in fact judges when they signed the judgments; and (3) he was not, in any event, sufficiently identified as the person who had been previously convicted in two cases. We are not persuaded.

“Nothing in [the habitual criminal] statute requires that the copies to be introduced come directly and exclusively from the particular courts of record.” People v. Copeland, 976 P.2d 334, 340 (Colo.App.1998)(ad-missibility of Department of Correction records to support prior convictions), aff’d, 2 P.3d 1283 (Colo.2000).

Nor does CRE 902 require that eách and every signature contained within an otherwise properly authenticated set of public documents be certified or embossed with a seal. Copies of public records are self-authenticating and require no extrinsic evidence to prove their authenticity if they “are certified as correct by the custodian or other person authorized to make a certification, by certificate complying with paragraph (1), (2), or (3) of this rule.” CRE 902(4).

Here, the two contested sets of documents contain Department of Prisons or court records that are certified as true and correct copies by a ease records manager or court clerk, both acting as either the custodian of the records or as a person authorized to make such certification. The case records manager’s authority and attestation is certified under seal by the Nevada Secretary of State; the court clerk’s authority and attestation are certified under seal by a district court judge of the State of Nevada. These certifications comply with CRE 902(2). See People v. Copeland, supra.

Finally, we reject defendant’s contention that he was not sufficiently identified as the individual who was convicted in two of the prior felony cases. In the first ease, his identity was sufficiently established through a comparison of the fingerprints contained in the documents with defendant’s fingerprints. See People v. Bernabei, 979 P.2d 26, 31 (Colo.App.1998). In the second case, although the court documents contained neither photographs nor fingerprints, a separate, certified set of Department of Prisons records contained a copy of the mittimus for that conviction, as well as identifying fingerprints and a photograph.

We conclude that the evidence thus was sufficient to sustain defendant’s adjudication as an habitual criminal. See People v. Ber-nabei, supra; People v. Copeland, supra.

VI.Length of Habitual Offender Sentence

Finally, defendant contends that the trial court erred in sentencing him as an habitual criminal to a term of ninety-six years’ incarceration. More specifically, he asserts that the court erred in calculating the habitual criminal sentence based on the twenty-four-year maximum term in the presumptive range for a class two felony used to determine sentences under the special drug offender statute. See §§ 18-1-105(l)(a)(V)(A), 18-18-407(l)(a), C.R.S.2001. We agree.

Under the applicable terms of the habitual criminal statute, defendant was required to be

punished for the felony offense of which such person is convicted by imprisonment ... 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.

See § 16-13-101(2), C.R.S.2001.

The interpretation of statutes presents a question of law subject to de novo review. Hendricks v. People, 10 P.3d 1231, 1235 (Colo.2000).

In interpreting § 16-13-101(2), our task is to ascertain and give effect to the intent of the General Assembly. People v. Swain, 959 P.2d 426, 429 (Colo.1998). To discern legislative intent, we look first to the plain language of the statute itself. People v. McNeese, 892 P.2d 304, 310 (Colo.1995). When the statutory language is clear and unambiguous, we apply the statute as written without resort to interpretive rules and statutory construction. People v. Zapotocky, 869 P.2d 1234, 1238 (Colo.1994).

Here the statutory language is clear: punishment as an habitual criminal is explicitly linked to the maximum term of the presumptive range of the “class of felony” for the “offense” of which the individual has been convicted.

As pertinent here, the only felony “offense” of which defendant was convicted was possession of a schedule II controlled substance (cocaine), which is a class four felony punishable by a presumptive range sentence of two to six years. See §§ 18-1-105(l)(a)(V)(A), 18-18-405(l)(a), (2)(a)(I), C.R.S.2001. The special drug offender statute did not reclassify his offense as a class two felony. Nor did it create a substantive criminal offense. Had the General Assembly intended to reclassify the offense, it would have done so explicitly. See Mason v. People, 932 P.2d 1377, 1380 (Colo.1997)(had the legislature intended statute to achieve a certain result, it would have employed terminology clearly expressing that intent, as it had done in other circumstances).

Instead, in the special drug offender statute, the General Assembly identified circumstances, apart from the elements of the offense, that, if found to be present, would require enhanced sentencing for “a term of at least the minimum term of years within the presumptive range for a class 2 felony but not more than twice the maximum term of years within the presumptive range for a class 2 felony.” See § 18-18-407(1); Vega v. People, 893 P.2d 107,111-13 (Colo.1995).

Because the special drug offender statute changes the potential punishment for, but not the felony classification of, the offense for which defendant was convicted, we conclude that the special offender statute plays no part in determining the length of defendant’s habitual criminal sentence. This conclusion comports with the recognition that the habitual criminal statute is to be construed narrowly in favor of the accused. See People v. Nees, 200 Colo. 392, 396, 615 P.2d 690, 693 (1980).

Consequently, we hold that defendant’s habitual criminal sentence must be calculated by quadrupling the six-year maximum term in the presumptive range for his class four felony offenses. Accordingly, he was subject to a mandatory habitual criminal sentence of twenty-four, not ninety-six, years’ incarceration.

VII. Sentencing on Remand

We note that, besides being adjudicated an habitual criminal based on his recidivism, defendant was also adjudicated a special drug offender based on his possession of, or having had available for use, a deadly weapon during the crimes for which he was convicted. As a special drug offender, defendant was subject to a mandatory sentence of between eight and forty-eight years incarceration. See §§ 18-l-105(l)(a)(V)(A), 18-18-407(1).

Both the habitual criminal and special drug offender statutes state that a defendant “shall” be sentenced in accordance therewith. See §§ 16-13-101(2), 18-18-407(1). The special drug offender statute also provides that “[n]othing in this section shall preclude the court from imposing a greater sentence set forth in any other statute.” See § 18-18-407(5), C.R.S. 2001.

It is clear from these provisions and prior ease law that defendant must receive at least a sentence of twenty-four years’ incarceration under the habitual criminal act. See People v. Montgomery, 737 P.2d 413, 417 (Colo.1987) (sentencing court may not ignore the penalty provisions of the habitual criminal act). Giving effect also to his adjudication as a special drug offender, we conclude that defendant is subject to a mandatory sentence of no less than twenty-four years nor more than forty-eight years incarceration.

Accordingly, the judgment of conviction is affirmed, the sentence is vacated, and the case is remanded for resentencing consistent with the views expressed in this opinion.

MARQUEZ and PIERCE , JJ., concur.


author: Judge ROY.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Oscar BONILLA-GARCIA, Defendant-Appellant.
    No. 99CA2370.
    Colorado Court of Appeals, Div. V.
    Oct. 11, 2001.
    Rehearing Denied Dec. 20, 2001.
    Certiorari Denied Aug. 5, 2002.

      Ken Salazar, Attorney General, Laurie A. Booras, First Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Lisa Dixon, Deputy State Public Defender, Denver, CO, for Defendant-Appellant.

       Justice MARTINEZ would grant as to the following issue:
      When one panel of the court of appeals orders a limited remand to litigate a sentencing issue, and the defendant appeals the sentencing issue, whether another panel of the court of appeals erred by dismissing the appeal on the basis that the remand was unauthorized.
      Whether section 18-l-410(l)(f), C.R.S., authorizes retroactive application of a reduced sentence for defendants previously convicted of drug crimes as "special offenders”.

   Opinion by

Judge ROY.

The defendant, Oscar Bonilla-Garcia, appeals the trial court’s order denying his post-conviction motion for sentence reduction. We dismiss the appeal.

The defendant was convicted at trial of possession of eight or more ounces of marijuana and possession of marijuana with intent to distribute, and he was found to have committed these offenses as a “special offender” by knowingly importing or possessing more than one hundred pounds of marijuana. All of the offenses were committed on May 30, 1995. The trial court sentenced the defendant to twenty-four years and one day in the custody of the Department of Corrections (DOC).

The statute then in effect provided for a sentence with a minimum term of years greater than the presumptive range but not more than twice the maximum term within the presumptive range for a class two felony. Colo. Sess. Laws 1992, eh. 71 at 361-64; § 18-1-105, C.R.S.2001. Thus, the applicable range for the defendant was twenty-four years and one day to forty-eight years, and defendant’s sentence was the minimum sentence.

In 1997, effective for offenses committed on or after July 1, 1997, the General Assembly. amended the special offender statute by reducing the penalty to at least the minimum term of years but not more than twice the maximum term of years within the presumptive range for a class two felony. Colo. Sess. Laws 1997, ch. 263 at 1542; §§ 18-1-105, 18-18-407(1), C.R.S.2001. The applicable range for a class two felony at that time was eight years to forty-eight years. Had that amendment been applicable, the defendant’s sentence here would be three times the minimum sentence.

The defendant appealed the judgment of conviction, and a division of this court affirmed. People v. Bonillar-Garcia, (Colo.App. No. 96CA0766, Aug. 13, 1998) (not selected for official publication). After the supreme court denied the defendant’s petition for a writ of certiorari on March 15, 1999, the defendant filed a motion in this court asking for a stay of the mandate and for a limited remand to the trial court for a determination of whether the 1997 amendment substantially reducing the minimum penalty for his offense constituted a “significant change in the law” that should be applied retroactively pursuant to § 18-l-410(l)(f)(I), C.R.S.2001. The defendant’s request was granted over the objection of the People. On remand, the trial court ruled that the length of the defendant’s sentence was appropriate, and on June 3, 1999, this court issued its mandate.

On July 1, 1999, the defendant filed a motion in this court to recall the mandate on the grounds that the trial court had not complied with the original limited remand. The mandate was recalled, and the People were directed to file a response to the defendant’s motion for a second limited remand to accord the trial court another chance to comply with the first limited remand. After considering the People’s response, the division, on August 9, 1999, withdrew the mandate and remanded the case to the trial court with explicit orders to make a specific determination and finding as to whether § 18-1-410(l)(f)(I) justified relief from the defendant’s sentence.

Upon remand, the trial court denied relief, concluding that the effective date of the 1997 amendment precluded its retroactive application because it expressly applied only to offenses committed on or after July 1, 1997. The mandate then issued with the consent of the defendant. This appeal followed.

On appeal, the People, relying on C.A.R. 41.1, argue that this court lacked the authority to stay or withdraw the mandate and, therefore, the trial court lacked jurisdiction to consider defendant’s motion. This argument was not presented to the division that stayed and then recalled the mandate and granted the limited remands. However, because the issue is jurisdictional, we must address it. We do so now, and we agree.

C.A.R. 41.1 provides, in pertinent part, as follows:

The Supreme Court, the Court of Appeals, or a justice or judge thereof may upon just terms stay the issuance of, or recall, any mandate of the Court of Appeals until the time for seeking review by the Supreme Court expires, or if review is timely sought until it is granted or refused, or if review is granted until final disposition of the case by the Supreme Court. The stay may apply to any judgment entered or standing affirmed in any court pursuant to the mandate of the Court of Appeals_(empha-sis added)

We conclude that the authority of this court to stay or withdraw a mandate expires as provided by the rule, or, as applied here, when the supreme court denied the defendant’s writ of certiorari. Therefore, the division exceeded its authority when it initially stayed and later withdrew the mandate.

Appeal dismissed.

Judge ROTHENBERG and Judge TAUBMAN concur.


author: Judge STERNBERG.

text:
    REGENTS OF the UNIVERSITY OF COLORADO on Behalf of the UNIVERSITY OF COLORADO AT BOULDER, and Buffalo Power Corporation, a Colorado not-for-profit corporation, Plaintiffs-Appellants, v. HARBERT CONSTRUCTION COMPANY, a division of Harbert International, Inc., a Delaware corporation; and U.S. Turbine Corporation, an Ohio corporation, Defendants-Appellees.
    No. 00CA1276.
    Colorado Court of Appeals, Div. III.
    Nov. 8, 2001.
    Rehearing Denied Dec. 20, 2001.
    Certiorari Denied July 22, 2002.

      Grand & Breslau, P.C., Brad W. Breslau, Della S. Nelson, Denver, CO; Sutton & Me-lonalds, P.A., Anthony Melonakis, Littleton, CO, for Plaintiffs-Appellants.
    Brownstein Hyatt & Farber, P.C., Hubert Farbes, Jr., Mark T. Barnes, Denver, CO, for Defendant-Appellee Harbert Construction Company.
    Burg Simpson Eldredge Hersh & Houli-ston, P.C., Scott J. Eldredge, Englewood, CO, for Defendant-Appellee U.S. Turbine Corporation.
   Opinion by

Judge STERNBERG.

This case arises from an explosion and fire at a cogeneration power facility. Plaintiffs, the Regents of the University of Colorado and Buffalo Power Corporation, challenge the summary judgment entered in favor of defendant, Harbert Construction Company, the contractor that built the facility. Plaintiffs also appeal from the judgment entered on a jury verdict in favor of defendant, U.S. Turbine Corporation, a subcontractor for the project. We affirm in part, reverse in part, and remand for further proceedings.

Plaintiffs hired the contractor to build a cogeneration facility on the University of Colorado’s Boulder campus. The subcontractor was hired to provide the gas turbine engines for the project, as well as technical assistance when the turbines were installed. The subcontractor also trained the facility’s staff in the maintenance and operation of the turbines.

Plaintiffs’ contract with the contractor included a warranty for the contractor’s work on the facility. Plaintiffs also purchased from the subcontractor a five-year “System Maintenance and Extended Warranty Agreement” for the turbines.

The explosion and fire occurred when a 500-gallon waste fuel tank in the facility’s basement overfilled, causing fuel oil to back up into one of the turbines. Although no one was hurt in the incident, the facility sustained extensive damage.

Four factors contributed to the explosion. First, each turbine was connected to the inlet plenum drain, which permitted cleaning solution to be drained from the turbines after a crank soak wash, ie., a wash in which the turbines were shut off. The design drawing prepared by the contractor’s engineer called for the drain to empty into an open trench in the ground. The workers who built the facility connected the drain to the waste fuel tank. This alteration troubled the subcontractor’s on-site representative, but he did not share his concerns with anyone.

Second, the inlet plenum drain included a hand valve that was to remain closed except when the subcontractor inspected the system or the facility staff drained the turbines after a crank soak wash. The valve was open when the accident occurred. Had it been closed, it would have prevented the fuel oil in the waste fuel tank from backing up into the turbine. The record is conflicting as to whether the subcontractor or a facility staff member left the valve open.

Third, the contractor installed a vent stack on the waste fuel tank that should have provided an escape for any excess fuel oil. The fuel oil could not drain from the vent stack, however, because the stack was elevated above the waste tank to a point that was higher than the base of the inlet plenum drain. As a result, when the waste tank overfilled, the fuel oil backed up into the turbines before it could reach the end of the vent stack. The record is conflicting as to whether the contractor installed a vent stack that was too high or whether the facility staff improperly lengthened it after installation.

And fourth, the facility staff ignored a system alarm and allowed the waste tank to overfill. The alarm, which was triggered when the waste tank became two-thirds full, went off twice in the three weeks before the explosion. The staff had no sense of urgency about the alarm because the waste tank had filled to capacity only twice in the three and a half years of the facility’s operation. The tank filled exceptionally quickly in this instance, however, due to a valve defect that allowed steam condensate to leak into the inlet plenum drain. A sight gauge on the tank allowed the staff to visually monitor the fluid level inside.

Plaintiffs sued the contractor for negligence, breach of contract, breach of express and implied warranties, strict liability, and indemnification. The trial court granted the contractor’s motion for summary judgment on plaintiffs’ claims of negligence, breach of contract, strict liability, and indemnification, based on its conclusion that the parties’ contract precluded recovery for these claims. The court granted summary judgment for the contractor on the warranty claims because the contractor’s warranty had expired when the accident occurred. The trial court denied plaintiffs’ subsequent motion for reconsideration and awarded the contractor $76,236 in costs.

Plaintiffs sued the subcontractor for negligence and breach of contract. Those claims were tried to a jury, which returned a verdict in the subcontractor’s favor.

I.

Plaintiffs contend that the trial court erred in entering summary judgment for the contractor on plaintiffs’ claims for negligence, breach of contract, strict liability, and breach of express warranty. According to them, the court erred in concluding that the parties’ contract precluded recovery for those claims. We disagree.

Our review of a grant of summary judgment in matters involving contract interpretation is de novo. The nonmoving party is entitled to the benefit of all favorable inferences that reasonably may be drawn from the undisputed facts, and all doubts must be resolved against the moving party. Our goal in interpreting the contract is to give effect to the parties’ intent expressed in the contract language. Vu, Inc. v. Pac. Ocean Marketplace, 36 P.3d 165 (Colo.App.2001).

A.

The trial court concluded that § 9.4 of the parties’ contract precluded recovery for negligence, breach of contract, and strict liability. Section 9.4 states in relevant part that, subject to certain exceptions (including warranty claims under § 18 of the contract) that do not apply here, “Acceptance of the work ... shall constitute a release of all claims against CONTRACTOR....” The trial court determined that § 9:4 was unambiguous and released the contractor from liability for claims related to negligence, breach of contract, and strict liability. We agree.

Section 9.4 extinguished liability for all claims, subject to exceptions that do not apply to the three claims at issue. Had the parties wished to exclude negligence, breach of contract, and strict liability claims from the scope of the release, they could have easily done so. If a contract clearly expresses the intent of the parties, it must be enforced as written. See Fox v. 1-10, Ltd., 957 P.2d 1018 (Colo.1998).

Plaintiffs argue the variances in the inlet plenum drain and the vent stack are latent defects to which § 9.4 does not apply. Plaintiffs rely on five cases in making this argument: Zambakian v. Leson, 77 Colo. 183, 234 P. 1065 (1925); Cohen v. Vivian, 141 Colo. 443, 349 P.2d 366 (1960); Barker v. Nichols, 3 Colo.App. 25, 31 P. 1024 (1892); Driscoll v. Columbia Realty-Woodland Park Co., 41 Colo.App. 453, 590 P.2d 73 (1978); and City of Granville v. Kovash, Inc., 118 N.W.2d 354 (N.D.1962). These cases are distinguishable because they do not concern release provisions like § 9.4. A sixth case, Summit Construction Co. v. Yeager Garden Acres, Inc., 28 Colo.App. 110, 470 P.2d 870 (1970), is distinguishable because there an exception to the release allowed the plaintiff to pursue the claim at issue.

The language of § 9.4 is broad and unambiguous: it precludes plaintiff from recovering for claims of negligence, breach of contract, and strict liability. Thus, the contractor was entitled to summary judgment on those claims.

B.

Although § 9.4 excepts warranty claims from the general liability release, the trial court concluded that plaintiffs’ express warranty claim was untimely because the warranty provided in the contract had expired when the accident occurred. Again, we agree with the trial court.

Section 18 of the parties’ contract states that the contractor’s “WORK will be performed in accordance with Contract Documents and in accordance with generally accepted engineering and construction principles and practices.”

Section 18.2 warrants that the contractor’s ‘WORK will be free from defects in design, workmanship, equipment and materials,” and that “the CONTRACTOR shall promptly correct any defects, including nonconfor-mance with the Contract Documents,” that occur within the warranty period.

Section 18.3 provides: “The warranty period provided in Section 18.2 shall begin on Acceptance or the date that care, custody and control of a portion of the WORK is transferred to the OWNER ... and shall end twelve (12) months later.... ”

Plaintiffs contend that § 18 provides a separate warranty from that found in § 18.2 and thus is not subject to the twelve-month warranty period in § 18.3. A logical reading of the sections leads to a contrary conclusion. Section 18.2 specifically incorporates § 18 by requiring the contractor to correct defects that relate to “nonconformance with the Contract Documents” if those defects occur within the warranty period.

In construing a contract, the meaning and intent of the parties must be determined in light of the contract as a whole. Moreover, the construction of the contract must be consistent with its main purposes. Johnson Homes, Inc. v. Southwest Metro. Water & Sanitation Dist., 725 P.2d 12 (Colo.App.1986). Construed together, the warranty provisions created a twelve-month period, triggered by plaintiffs’ acceptance of the facility, during which all warranty claims had to accrue to be actionable. Because there is no dispute that plaintiffs’ express warranty claim arose more than twelve months after the facility was accepted, the trial court did not err in granting summary judgment on that claim in the contractor’s favor.

We reject plaintiffs’ contention that enforcement of the warranty as written deprives them of the substantial value of the contract in violation of the essential purpose doctrine under § 4-2-719(2), C.R.S.2001, of the Colorado Uniform Commercial Code. Even if we accept the premise that the Code applies to the contract here, we do not agree that the remedy available to plaintiffs failed of its essential purpose. The warranty provision did not provide an inadequate remedy to plaintiffs during the warranty period; it merely limited the duration of the contractor’s liability. Therefore, § 4-2-719(2) is inapplicable here. See Boston Helicopter Charter, Inc. v. Agusta Aviation Corp., 767 F.Supp. 363 (D.Mass.1991)(collecting cases that hold that U.C.C. § 2-719(2) does not apply to expired warranties).

Because we conclude that the express wár-ranty under the contract had expired when plaintiffs’ cause of action accrued, we do not address the parties’ arguments as to which statute of limitations applied to plaintiffs’ express warranty claim.

II.

Plaintiffs contend that the trial court erred in awarding the contractor costs in an amount that is unreasonable and not representative of the contractor’s actual costs. We agree in part.

A trial court has broad discretion in awarding costs, and its decision will not be disturbed on appeal unless it has abused its discretion. A court abuses its discretion if its decision is manifestly arbitrary, unreasonable, or unfair. Nguyen v. Reg’l Transp. Dist., 987 P.2d 933 (Colo.App.1999).

A.

Plaintiffs contend that the contractor’s costs were not reasonably incurred because it waited one and a half years after the complaint was filed to move for summary judgment. Plaintiffs argue that the contractor took an unreasonably long time to make its motion and thus incurred unreasonable costs. We disagree.

This case involved complicated facts related to technical engineering issues. There were disputed matters regarding the parties’ responsibilities and who performed certain work on the facility. The situation here is different from that in Smith v. Town of Snowmass Village, 919 P.2d 868 (Colo.App.1996), the case on which plaintiffs rely. In Smith, a slip and fall case that was completely resolved when the lawsuit was dismissed on governmental immunity grounds, the defendant was awarded only those costs necessary to resolve the issue of subject matter jurisdiction. Smith was much less complex, both legally and factually, than this case.

Here, in deciding when to file the motion for summary judgment, counsel for the contractor had to balance his client’s interest in prevailing at the lowest cost against the necessity of fully understanding the issues raised by plaintiffs’ complaint. Under these circumstances the trial court did not err in awarding costs incurred up to the time the contractor moved for summary judgment.

B.

Plaintiffs’ next contention is that the bill of costs the contractor submitted must be disallowed because it included items that were based on estimated rather than actual expenses incurred in the litigation. We agree.

The contractor’s bill of costs included uni-temized charges identified as “general costs.” The contractor’s attorney informed the trial court that his firm determined general costs by analyzing a representative selection of its cases to determine an average cost for expenses such as in-house copying, postage, local deliveries, and fax and long-distance phone service. Based on this analysis, the firm arrived at a general cost figure that was included as a percentage of the fee charged to the client in lieu of specific costs. The practice was described as “an accounting exercise utilized by the firm ... to minimize the administrative cost associated with keeping track of all those individual items.”

The record must contain evidence that costs are necessary before those costs may be awarded. Callaham v. First Am. Title Ins. Co., 837 P.2d 769 (Colo.App.1992). The general costs claimed by the contractor, which are not the actual costs incurred, do not comply with this requirement. Therefore, that portion of the trial court’s order awarding general costs must be reversed, and the ease must be remanded to allow the contractor to submit evidence to support the necessity of the costs at issue.

III.

As to their claims against defendant U.S. Turbine Corporation, plaintiffs contend that the trial court erred in giving the jury a “look but not see” instruction patterned on CJI-Civ. 4th 9:13 (1998). We disagree.

A party is entitled to an instruction if it fairly presents the issues and is supported by the evidence. Unless cured by the instructions as a whole, it is reversible error for a trial court to give an erroneous instruction. Lascano v. Vowell, 940 P.2d 977 (Colo.App.1996).

The instruction at issue stated: “To look in such a manner as to fail to see what must have been plainly visible is to look without a reasonable degree of care and is of no more effect than not to have looked at all.” The trial court gave this instruction, over plaintiffs’ objection, in reference to the facility staffs failure to monitor adequately the sight gauge on the waste fuel tank.

The “look but not see” instruction should not be given unless the alleged negligence or contributory negligence involves a failure to see something that was plainly visible, and the allegedly negligent actor claims he or she did not see it. Pizza v. Wolf Creek Ski Dev. Corp., 711 P.2d 671 (Colo.1985).

Plaintiffs contend that it was error to give the instruction for two reasons. First, the sight gauge was obscured by piping and equipment and was not plainly visible. Second, the evidence at trial indicated that no one from the facility staff even attempted to look at the gauge between the time the alarm was triggered and the time the explosion occurred. The record supports a contrary conclusion.

Regarding the visibility of the gauge, the facility’s operations supervisor testified that it was “not hard to see,” despite the fact that it was surrounded by pipes and other equipment. The witness further testified that, although it became routine not to check the sight gauge on a regular basis, the facility staff would “absolutely” look at it if the system alarm were triggered.

Thus, there is evidence in the record to support a conclusion that the sight gauge was plainly visible and the facility staff looked at it upon the triggering of the system alarm. Accordingly, the trial court did not err by giving the disputed instruction.

IV.

Plaintiffs contend that the trial court erred by refusing to give their proposed jury instructions about the meaning of §§ 3(g) and 3(j) of the System Maintenance and Extended Warranty Agreement provided by the subcontractor. We are not persuaded.

A trial judge is required to instruct the jury on the law applicable to the case, and a party is entitled to an instruction on its theory of the case if the evidence supports it. Hansen v. State Farm Mut. Auto. Ins. Co., 957 P.2d 1380 (Colo.1998).

Section 3(g) of the agreement obligated the subcontractor to “review, evaluate and recommend specific retrofit and such other programs as identified by [the subcontractor] or others, that would be beneficial to [plaintiffs] in the operation of the System and overall operating economics.”

Section 3(j) of the agreement required the subcontractor to “identify, either verbally or in writing, any condition, event or cause of concern as it relates to the safety of the System, personnel and/or operation as identified during the course of preventative maintenance, inspection, emergency service and/or other service being performed.”

The agreement defined the “System” as “each gas turbine generator set and components thereof supplied by [the subcontractor] and installed at the Site.”

Plaintiffs’ proposed instruction stated that, as a matter of law, §§ 3(g) and 3(j) referred to retrofits to equipment and conditions, events or causes of concerns “that exist either inside or outside of the System.”

Our reading of §§ 3(g) and 3(j) indicates that neither section unambiguously gave the subcontractor responsibility for any matter outside of the defined system covered by the warranty agreement. Therefore, the trial court did not err by refusing to give plaintiffs’ proposed instruction.

The judgment is affirmed in all respects except for the award of general costs to the contractor, which is reversed. The case is remanded to the trial court to allow the contractor to submit evidence to support the necessity of the costs at issue.

Judge JONES and Judge NIETO concur.

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


text:
    Chester JONES and Audrey Jones, Plaintiffs-Appellants, v. AIU INSURANCE COMPANY, a foreign insurance company licensed in Colorado, Defendant-Appellee.
    No. 00CA2364.
    Colorado Court of Appeals, Div. IV.
    Dec. 6, 2001.
    Rehearing Denied Feb. 21, 2002.
    Certiorari Denied July 22, 2002.
    William P. Godsman, Denver, CO, for Plaintiffs-Appellants.
    Senter Goldfarb & Rice, L.L.C., William L. Senter, Peter J. Morgan, Denver, CO, for Defendant-Appellee.
   Opinion by

Judge DAILEY.

In this declaratory judgment action concerning underinsured motorist benefits, plaintiffs, Chester and Audrey Jones, appeal from a judgment entered in favor of defendant, AIU Insurance Company. We affirm.

Plaintiffs’ son was killed in a one-vehicle accident in which the driver was underin-sured. Plaintiffs sought underinsured motorist benefits under their policy with defendant for the wrongful death of their son. Defendant denied plaintiffs’ claim because their son did not reside with them and was not an insured under the terms of the policy.

Plaintiffs instituted the present action, seeking a declaration that they were entitled to recover underinsured motorist benefits from defendant. The trial court, however, granted defendant’s motion for summary judgment, concluding that the terms of the policy neither authorized recovery nor violated public policy.

On appeal, plaintiffs concede that they are not entitled to underinsured motorist benefits under the terms of the policy, which limited recovery to “bodily injury ... sustained by the insured.” They contend only that this limitation in the scope of coverage is more restrictive than that required by statute and, consequently, is void as against public policy. We disagree.

We review de novo a trial court’s order granting summary judgment. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, 901 P.2d 1251, 1256 (Colo.1995).

An insurance contract may be void as against public policy if it dilutes, conditions, or limits statutorily mandated coverage. Cruz v. Farmers Insurance Exchange, 12 P.3d 307, 312 (Colo.App.2000). Whether a statute mandates coverage is a matter of statutory interpretation subject to de novo review. See United Airlines, Inc. v. Industrial Claim Appeals Office, 993 P.2d 1152, 1157 (Colo.2000).

Underinsured motorist (UIM) coverage is provided as part of uninsured motorist (UM) coverage pursuant to § 10-4-609, C.R.S. 2001. See § 10^-609(2), C.R.S.2001 (“under-insured motorist coverage is included in the term ‘uninsured motorist coverage’ ”); § 10-4-609(4), C.R.S.2001 (“Uninsured motorist coverage shall include coverage for damage for bodily injury or death which an insured is legally entitled to collect from the owner or driver of an underinsured motor vehicle.”).

The General Assembly requires insurers to offer underinsured motorist coverage to the same extent as uninsured motorist coverage. See Shelter Mutual Insurance Co. v. Thompson, 852 P.2d 459, 465 (Colo.1993); Famers Insurance Exchange v. Walther, 902 P.2d 930, 935 (Colo.App.1995). Indeed, the only significant difference between UM and UIM coverage is that the amount of UIM benefits takes into consideration the amount of insurance held by an underinsured motorist. See § 10-4-609(5), C.R.S.2001; Freeman v. State Farm Mutual Automobile Insurance Co., 946 P.2d 584, 585 (Colo.App.1997).

In Farmers Insurance Exchange v. Chacon, 939 P.2d 517, 520, 522 (Colo.App.1997), a division of this court held that § 10-4-609 does not require UM coverage for the wrongful death of a person who is not an insured under a claimant’s policy.

We agree with the decision in Farmers Insurance Exchange v. Chacon, supra, and because the General Assembly makes no distinction between UM and UIM coverage, likewise conclude that § 10-4-609 does not require UIM coverage for the wrongful death of a person who is not an insured under a claimant’s policy.

Plaintiffs contend otherwise, arguing that the UIM provision is broader in scope than the UM provision based upon a comparative difference in statutory language. Compare § 10-4-609(l)(a) (protecting “persons insured ... who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death”)(emphasis added), with § 10-4^609(4) (providing insured with underinsured motorist “coverage for damage for bodily injury or death”)(emphasis added).

However, § 10-4-609 must be read and considered as a whole and construed to give consistent, harmonious, and sensible effect to all of its parts. See Sandoval v. Archdiocese of Denver, 8 P.3d 598, 601 (Colo.App.2000).

Reading the UIM provision as broadly as plaintiffs suggest would, contrary to common sense, allow recovery of UIM benefits for the death of an individual who was not insured under claimant’s insurance policy, who did not reside in claimant’s household, and who, if he or she had survived, would not have had any right of recovery under claimant’s policy. See Temple v. Travelers Indemnity Co., 2000 WL 33113814 (Del.Super.Ct. No. 98C-08-088, Nov. 30, 2000), aff'd, 782 A.2d 267, 2001 WL 760864 (Del. No. 587, 2000, June 14, 2001). See also Lafleur v. Fidelity & Casualty Co., 385 So.2d 1241, 1245 (La.Ct.App.1980)(UM/UIM statute did not require UIM policy to cover wrongful death of third person).

Further, plaintiffs’ construction of the statute would create the anomalous situation where benefits for the wrongful death of an uninsured person were not required if the motorist causing death was uninsured, but required if the motorist was underinsured.

For these reasons, we reject plaintiffs’ construction of § 10-4-609. Instead, we conclude that limiting UIM benefits to bodily injuries or death sustained by a person insured by the policy does not violate § 10-4-609 and, consequently, is not void as against public policy.

Accordingly, the judgment is affirmed.

Judge DAVIDSON and Judge RULAND concur.


text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Stephen MARTINEZ, Defendant-Appellant.
    No. 00CA0312.
    Colorado Court of Appeals, Div. I.
    Dec. 20, 2001.
    As Modified on Denial of Rehearing Feb. 7, 2002.
    Certiorari Granted Aug. 5, 2002.

      Ken Salazar, Attorney General, Lauren Edelstein Park, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Ann M. Aber, Deputy State Public Defender, James Grimaldi, Deputy State Public Defender, Denver, CO, for Defendant-Appellant.
   Opinion by

Judge ROY.

Defendant, Stephen Martinez, appeals the trial court’s judgment of conviction entered on a jury verdict finding him guilty of first degree, knowing murder of a child by a person in a position of trust, under § 18-6-401(7)(e), C.R.S.2001. We reverse and remand for a new trial.

On October 17, 1998, defendant was babysitting his girlfriend’s four-month-old baby daughter born of a previous relationship. Defendant reported to the emergency operator that the child had begun choking after he fed her and that the child was pale and cold. Paramedics arrived and took the child to the hospital, where she died later that day.

Police officers arrived and noticed that the baby’s crib sheet was missing. Defendant told the officers that he had placed the sheet in the washing machine because it was stained with the baby’s blood. Both defendant and his girlfriend gave statements to the officers. In his statement, defendant reiterated what he had said to the emergency operator.

In a later videotaped interview with an investigating officer, defendant stated that the baby’s death may have been due to an incident that had occurred two and one-half weeks earlier, in which he had tripped while feeding the baby and caused her to incur a‘ minor head wound. The police detective questioned defendant’s story, stated that the doctors said the baby’s injury occurred that day, and encouraged defendant to confess. Defendant then stated that, on the day in question, he had grown frustrated with the baby’s crying and shook her, and while he was shaking her, her head accidentally hit the crib. Defendant stated, “I shook her hard,” and also provided a demonstration of his actions that day.

The coroner testified that the baby suffered an occipital skull fracture, localized subdural and subarachnoid hemorrhages, optical nerve and retinal hemorrhages, a reported “history of acceleration/deceleration,” and scalp bruises. The cause of death was complications from a blunt trauma to her head. All of the injuries were more or equally consistent with blunt trauma, except the optical nerve and retinal hemorrhages, which were more consistent with acceleration/deceleration.

The primary issue at trial was defendant’s mental state when the incident occurred. Defendant’s theory was that he shook the baby with minimal force, as demonstrated in the videotape, and that he accidentally hit her head on the crib. The jury was instructed on first degree murder, knowing murder of a child by a person in a position of trust, child abuse resulting in death (reckless), child abuse resulting in death (criminal negligence), manslaughter, and criminally negligent homicide.

I.

Defendant contends that those portions of a pediatrician’s testimony concerning fact patterns or events known to have produced subdural hematomas and the prosecutor’s allusion to that testimony in closing argument as establishing the minimum force necessary to cause a subdural hematoma rise to the level of reversible error. We agree.

The prosecution sought to prove that defendant acted “knowingly” rather than “recklessly” or “with criminal negligence” by presenting expert testimony that the injuries sustained by the child resulted from a force so great that the defendant had to know his actions were practically certain to cause death, the standard for acting “knowingly.”

A person acts “with criminal negligence” when he or she acts in a manner that is a gross deviation from the standard of care of a reasonable person or fails to perceive a substantial and unjustified risk; and he or she acts “recklessly” when he or she acts with a conscious disregard of a substantial and unjustifiable risk. Section 18-1-501(6), (8), C.R.S. 2001.

Specifically, the prosecutor, over defendant’s objection, attempted to elicit testimony from physicians that a subdural hemato-ma occurs when a child is involved in a high-speed automobile accident or falls from a multistory building.

The prosecutor first sought this opinion from the deputy coroner who had performed the autopsy on the baby. The defense objected primarily on the basis of CRE 403, arguing that the testimony was misleading and irrelevant. The prosecutor stated that the evidence was offered to provide the jury with a frame of reference regarding the severity with which the baby had been shaken and the severity of impact of her head with the crib. The court sustained defendant’s objection based solely on the form of the prosecutor’s question.

Later, the prosecutor sought to elicit the same opinion from a pediatrician who specialized in child abuse. The defense again objected, stating that the court had already ruled that this testimony was inadmissible. The court clarified that it had merely upheld the defense’s earlier objection based on the form of the question, and allowed the following testimony:

[Pediatrician]: ... A subdural hematoma is something that we only see in a few situations. For example, we see a subdural hematoma ... when — there are several examples of witnessed accidents, for example, in the medical literature....
Prosecutor: Doctor, you were talking about the sort of mechanisms that can cause this. You have said violent and you have said massive. Let’s talk about the kind of force we’re talking about. 'Are there studies and are there known fact patterns that have caused this sort of injury? ...
[Pediatrician]: Yes.
Prosecutor: What sort of known fact patterns in the studies have you talked about? [Pediatrician]: In talking about how much force that it requires to cause this kind of injury, we can’t take babies and shake them and do that for the obvious reason, so what we have had to do is take — there have been multiple studies of series of witnessed falls or witnessed accidents where babies have had similar kinds of injuries. Okay? And in those studies, babies who had similar kind of injuries, the subdural hematoma, have been things like a fall from a multiple story building. Being in a high speed motor vehicle accident either as a pedestrian hit by a high speed motor vehicle or, for example, an unrestrained passenger in a high speed motor vehicle accident, so those are the kinds of witnessed injuries that can lead to a similar sort of injury.
Prosecutor: What did [the baby] suffer, epidural or subdural?
[Pediatrician]: [The baby] had a subdural hematoma.

Both physicians testified it would take considerable force to cause the injuries sustained by the baby. The coroner was permitted to demonstrate, using a doll, the level of violence necessary to cause the injury. And both physicians testified that the necessary force was considerably in excess of that testified to by defendant and demonstrated by him on the videotaped statement.

The prosecutor, in closing argument, referred to the pediatrician’s testimony, stating:

Now that we know the extent of the injuries, right, the weight of the injuries, the extent of the mortal blows, and the mortal shaking, now we know the necessary force. As [the pediatrician] told us, we know it because it’s fact; it’s true. It has been observed in the real world. One, we now know the necessary force that takes us to that level of violence. The violence that must be exerted to exert that kind of force on the back of the child’s head. Okay? And now we know his level of violence; we know his true actions. What did he have to have done? What did he have to do? And if he was doing that, he had to have known what he was doing, and he had to have known what it was going to do to her. It is inescapable to conclude otherwise.

Relevant evidence is that which has any tendency to make the existence of a fact that is of consequence to the determination of the action more probable or less probable than it would have been without the evidence. CRE 401. However, relevant evidence is excluda-ble if its probative value is substantially outweighed by the danger of unfair prejudice, if it would confuse or mislead the jury, or if its consideration would cause undue delay, amount to a waste of time, or be cumulative. CRE 403.

An expert witness is permitted to express his or her opinion on scientific, technical, or other specialized knowledge if that opinion will assist the trier of fact to understand the evidence or determine a fact in issue. CRE 702.

In People v. Shreck, 22 P.3d 68 (Colo.2001), the supreme court held that CRE 702 and CRE 403 govern the admission of scientific evidence. With respect to the CRE 702 analysis, the court stated:

The focus of a Rule 702 inquiry is whether the scientific evidence proffered is both reliable and relevant. In determining whether the evidence is reliable, a trial court should consider (1) whether the scientific principles as to which the witness is testifying are reasonably reliable, and (2) whether the witness is qualified to opine on such matters. In determining whether the evidence is relevant, a trial court should consider whether the testimony would be useful to the jury.

People v. Shreck, supra, 22 P.3d at 77 (citations omitted; emphasis added).

The principal issue in Shreck was the reliability of the scientific evidence, in that case DNA evidence. In contrast, our inquiry here focuses primarily on the issue of relevancy. With respect to relevancy, the court in Shreck stated:

In addition, a trial court making a CRE 702 determination must apply its discretionary authority under CRE 403 to ensure that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, undue delay, waste of time, or needless presentation of cumulative evidence. Finally, a trial court’s CRE 702 determination must be based upon specific findings on the record as to the helpfulness and reliability of the evidence proffered. The trial court must also issue specific findings as to its consideration under CRE 403 as to whether the probative value of the evidence is substantially outweighed by its prejudicial effect.

People v. Shreck, supra, 22 P.3d at 78 (citations omitted).

Absent an abuse of discretion, a trial court’s evidentiary rulings will be affirmed. To show an abuse of discretion, an appellant must establish that the trial court’s decision to admit the evidence was manifestly arbitrary, unreasonable, or unfair. See People v. Cardenas, 25 P.3d 1258 (Colo.App.2000).

Here, although the trial court did not explicitly find that the probative value of the pediatrician’s testimony about observed accident scenarios that are known to have caused subdural hematomas in children was not substantially outweighed by danger of unfair prejudice, or that it would not confuse or mislead the jury, such findings are implicit in the court’s decision to admit this testimony. See People v. Copeland, 976 P.2d 334 (Colo.App.1998), aff'd, 2 P.3d 1283 (Colo.2000).

The announced purpose of the testimony concerning observed accident scenarios that are known to have caused subdural he-matomas in children was to establish that the force necessary to cause a subdural hemato-ma was such that defendant must have acted “knowingly” rather than “negligently” or “recklessly.” For that purpose, the evidence was irrelevant, highly prejudicial, and, in addition, was likely to confuse or mislead the jury.

As presented and argued, the evidence was not probative of the force necessary to cause a subdural hematoma. Put another way, to determine how much force defendant must have inflicted on the baby, it is the minimum force, however characterized, necessary to inflict a subdural hematoma in a child that is relevant. The testimony of the pediatrician of observed accident scenarios that are known to have caused subdural hematomas in children did not shed any light on that issue.

The lack of relevance, considering the purpose for which the evidence was offered, is demonstrated by the following syllogism, which is implicit in the pediatrician’s testimony and the prosecutor’s argument:

(1) Some children who suffer subdural hematomas are children who have been subjected to trauma or force such as that sustained by a fall from a multistory building or being unrestrained in a high-speed automobile accident.
(2) This child sustained a subdural hema-toma.
(3) Therefore, this child was subjected to trauma or force equal to or exceeding that caused by a fall from a multistory building or being unrestrained in a high-speed automobile accident.

The syllogism, which is in the form of a “categorical syllogism,” suffers from the classic fallacy of the “undistributed middle.” An essential rule in deductive reasoning is that what is known as the “middle term” in a categorical syllogism must be distributed, that is, referred to in its entirety, in at least one premise. See D. Lind, Logic and Legal Reasoning 130 (2001). The rationale underlying this rule is described as follows:

Professor Copi [I. Copi, Introduction to Logic (7th ed. 1986)] has reminded us that the conclusion of any syllogism asserts a connection between two terms. This connection is justified only if those terms — the major and minor terms — can be connected with each other through or by means of the middle term. For the two terms that become part of the conclusion to be connected through a third, at least one of the two must be related to the whole of the class designated by the third or middle term. Otherwise each may be connected with a different part of the class and not necessarily connected with each other at all.
It is critical, therefore, that the middle term encompass a larger universe than the minor term. Compared then to the minor term, which reflects only part of the class, the middle term is considered “distributed.” If the middle term does not represent the larger portion of the class being considered, and represents or is equivalent to the portion represented by the minor term, we say that the middle term is “undistributed.” When this occurs the connection to the conclusion cannot be justified; when this occurs we have the fallacy of the undistributed middle.
To put it in a formula, the fallacy occurs whenever it is argued that because x and y belong to the same class or possess a common property, they are identical. Some examples of the fallacy my help. Because business executives read the Wall Street Journal, a man who reads the Journal is a business executive. The ACLU supports the Democratic ticket; therefore, all those supporting the ticket adhere to ACLU causes.

R. Aldisert, Logic for Lawyers: A Guide to Clear Legal Thinking 148 (1989). If neither premise refers to the whole of the class represented by the middle term, the argument commits the fallacy of the undistributed middle.

It is one thing clearly to state that a certain quantum of force is necessary to produce a subdural hematoma; it is quite another to use examples of obviously extreme forces and violence that have been demonstrated to have caused subdural hematomas and then suggest that they constitute the minimum force necessary to cause such an injury in any particular case. In our view, reasonable inferences as to the underlying-issue cannot be drawn from that testimony.

Given that the pediatrician’s testimony and the prosecutor’s allusion to it in closing went to the heart of the primary issue in the case, the admission of the evidence was not harmless. Cfi People v. Mandez, 997 P.2d 1254 (Colo.App.1999)(statements that did not go to theory of case deemed minimally prejudicial). Thus, we conclude that the testimony concerning accident scenarios causing subdural hematomas in children and the prosecutor’s later allusion to it were unfairly prejudicial, and we reverse the conviction and remand the case for a new trial.

Having reached this conclusion, we need not address defendant’s related argument concerning the prosecution’s inconsistent positions.

II.

Because it may arise on retrial, we address defendant’s contention that § 18-6^401, C.R.S.2001, is unconstitutional. Defendant argues that § 18-6-401(7)(c), C.R.S.2001, provides a harsher punishment than § 18-6-401(7)(a)(I), C.R.S.2001, based on the nominal distinction of “position of trust” and that § 18-6-401 impermissibly imposes a harsher punishment for the murder of a child under the age of twelve than for the murder of a child between the ages of twelve and eighteen. We disagree with both arguments.

Equal protection of the laws, which assures like treatment to all who are similarly situated, is guaranteed by the Fourteenth Amendment and by article II, § 25 of the Colorado Constitution. A defendant is denied equal protection of the laws when two criminal statutes prescribe different penalties for identical conduct and the defendant is convicted and sentenced under the harsher statute. Consequently, statutory classifications of crimes must be based on differences that are real in fact and reasonably related to the purposes of the legislative enactments. At the same time, however, the General Assembly may establish more severe penalties for acts that it considers to have graver consequences, even if the differences are only a matter of degree. People v. Rickstreiv, 775 P.2d 570 (Colo.1989).

In reviewing constitutional challenges to statutory provisions, we are guided by the principles that legislation adopted by the General Assembly is to be presumed constitutional and that a party asserting the unconstitutionality of any statute has the burden of proving such assertion beyond a reasonable doubt. People v. Pate, 878 P.2d 685 (Colo.1994). In ascertaining legislative intent, we first look to the plain language of the statute, and if the statute is ambiguous, we may look to legislative history for guidance. State v. Nieto, 993 P.2d 493 (Colo.2000). Moreover, if a statute is susceptible to different interpretations, one of which comports with constitutional requirements, we must’ adopt that interpretation. People v. Jefferson, 748 P.2d 1223 (Colo.1988).

A.

Defendant first argues that the term “position of trust” is a nominal distinction that is neither real in fact nor rationally related to a legitimate purpose. We disagree.

Section 18-6-401 provides in pertinent part:

(l)(a) A person commits child abuse if such person causes an injury to a child’s life or health, or permits a child to be unreasonably placed in a situation that poses a threat of injury to the child’s life or health, or engages in a continued pattern of conduct that results in malnourishment, lack of proper medical care, cruel punishment, mistreatment, or an accumulation of injuries that ultimately results in the death of a child or serious bodily injury to a child.
(7)(a) Where death or injury results, the following shall apply:
(I) When a person acts knowingly or recklessly and the child abuse results in death to the child, it is a class 2 felony except as provided in paragraph (c) of this subsection (7).
(c) When a person knowingly causes the death of a child who has not yet attained twelve years of age and the person committing the offense is one in a position of trust with respect to the child, such person commits the crime of murder in the first degree as described in section 18-3-102(l)(f).

The term “position of trust” was first utilized in the sexual assault statute, § 18-3-405.3, C.R.S.2001, but now has broader implications and is defined in § 18-3-401(3.5), C.R.S.2001:

One in a “position of trust” includes, but is not limited to, any person who is a parent or acting in the place of a parent and charged with any of a parent’s rights, duties, or responsibilities concerning a child, including a guardian or someone otherwise responsible for the general supervision of a child’s welfare, or a person who is charged with any duty or responsibility for the health, education, welfare, or supervision of a child, including foster care, child care, family care, or institutional care, either independently or through another, no matter how brief, at the time of an unlawful act.

While we agree with defendant that the term “position of trust” is broad and may apply to many if not most situations in which a person may be alone, or is entrusted, with a child, this breadth does not render the distinction nominal.

The legislative history of § 18-6-401(7)(c) reveals that the General Assembly considered that a child is more vulnerable to abuse if an offender is known to the child or is entrusted with the care of the child by one who is otherwise responsible for that care. See generally Hearings on H.B. 1109 before Subcommittee of the House Judiciary Committee, 60th General Assembly, First Session (Jan. 26, 1995); Hearings on H.B. 1109 before Senate Judiciary Committee, 60th General Assembly, First Session (Mar. 6, 1995).

In addition, given that a person in a position of trust is more likely to be alone with a child, to lure successfully a child to a place of isolation, or to be capable of manipulating a child, either in causing a child’s submission to the abuse itself or in preventing a child from confiding in another about such abuse, the “position of trust” distinction is reasonably related to the more severe penalty associated with § 18-6-401(7)(c).

Thus, we conclude tha,t the distinction of a position of trust is not nominal and sufficiently justifies the harsher penalty imposed under § 18-6-401(7)(c).

B.

Defendant alternatively argues that the distinction between the death of a child under the age of twelve caused by child abuse, which is a class one felony, and the death of a child between the age of twelve and eighteen caused by child abuse, which is a class two felony, is unconstitutional. Specifically, defendant argues that the General Assembly’s “veneration and sentimental esteem” for younger children cannot form the basis for different punishments. In addition, defendant argues that the punishments prescribed are irrational, if not mismatched, given that it takes even greater force or dereliction to overcome an older child. We disagree.

At the outset, we note that § 18-6-401(2) defines a “child” as anyone under sixteen, not eighteen, years of age.

The statutory scheme does not express the rationale behind this age distinction; therefore, we again turn to the legislative history. Our review of the legislative history reveals that the General Assembly was not motivated by either veneration or sentimental esteem. Instead, the legislative history indicates a belief that children under the age of twelve are more vulnerable than older children and thus deserve the greater protection an increased penalty is perceived to give. In addition, there was testimony that although the age of twelve may not always include the more vulnerable or exclude the less vulnerable, it is an appropriate age to make such a distinction. See generally Hearings on H.B. 1109 before Subcommittee of the House Judiciary Committee, supra; Hearings on H.B. 1109 before Senate Judiciary Committee, supra.

We thus conclude that this age distinction is based on differences that are real in fact and are also reasonably related to the more severe penalty associated with § 18-6-401(7)(c). Cf § 6-1-112, et seq., C.R.S.2001 (Colorado Consumer Protection Act provides increased fine if victim elderly); §§ 18 — 1— 105, 18-1-106, C.R.S.2001 (fines for felonies and misdemeanors committed upon victims who are sixty years of age and older).

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

METZGER and DAVIDSON, JJ., concur.