author: Judge ROTHENBERG.

text:
    ANTELOPE COMPANY, a Colorado limited partnership; the Anschutz Family Foundation, a Colorado nonprofit corporation; and Piedmont Minerals Company, a Colorado general partnership, Plaintiffs-Appellants and Cross-Appel-lees, v. MOBIL ROCKY MOUNTAIN, INC., a Delaware corporation, Defendant-Appellee and Cross-Appellant.
    No. 99CA2366.
    Colorado Court of Appeals. Div. V.
    May 24, 2001.
    As Modified on Denial of Rehearing Dec. 20, 2001.
    Certiorari Denied July 22, 2002.
    See also, 7 F.3d 909.

      Rothgerber Johnson & Lyons, LLP, Frederick J. Baumann, Thomas M. Rogers, III, Denver, CO, for Plaintiffs-Appellants and Cross-Appellees.
    Bjork, Lindley, Danielson & Baker, Peter A. Bjork, David R. Little, John P. Baker, Denver, CO, for Defendant-Appellee and Cross-Appellant.
   Opinion by

Judge ROTHENBERG.

Plaintiffs, Antelope Company, the An-schutz Family Foundation, and Piedmont Minerals Company (the royalty owners), appeal the trial court’s entry of summary judgment. Defendant, Mobil Rocky Mountain, Inc. (Mobil), cross-appeals an order denying it the defense of collateral estoppel. We reverse and remand for further proceedings.

I. Background

This case is the latest in a series of lawsuits concerning the payment of royalties from sales of natural gas extracted pursuant to an oil, gas, and mineral lease (the lease). The lease pertains to a large tract of land along the Wyoming-Utah border known as the Anschutz Ranch East Unit (the Unit).

The Unit, comprised of sections of oil and gas fields, is owned and leased by separate entities. The royalty owners are lessors that possess a property interest in the natural gas produced from two sections of the Unit. As relevant here, the working interest owners are entities that possess exclusive rights to exploit the natural gas as lessees of certain sections of the Unit. Mobil is a lessee of the royalty owners and a working interest owner on part of the Unit.

All of the lawsuits, including this one, involve the interpretation of four agreements: (1) the lease, (2) the Unit Agreement, (3) the Unit Operating Agreement, and (4) a ratification agreement to the Unit Agreement entitled “Royalty Owner Joinder in and Ratification and Approval of Anschutz Ranch East Unit Agreement” (collectively, the Agreements).

In July 1982, Mobil became a lessee of one-half of sections 20 and 30 of the Unit. The Anschutz Corporation (TAC), a Kansas corporation whose principal place of business is in Colorado, had a lease interest in the other half of sections 20 and 30. Mobil and TAC also had the right to sell the natural gas it produced from sections 20 and 30 to Natural Gas Pipeline Company of America (NGPL).

The royalty owners have royalty interests in sections 20 and 30 of the Unit. These interests arise from a lease signed by the parties’ predecessors in 1976. The lease binds the royalty owners and Mobil, and provides, inter alia, that lessees are to pay royalties to the lessors on gas “produced from the leased land and sold.”

The lease permits sections 20 and 30 to be “unitized” with other sections of the Unit to maximize recovery of the gas reserves, and in December 1982, Mobil and the other working interest owners agreed to unitization.

Through unitization, or pooling of the fields, the working interest owners in the various sections of the Unit agree jointly to recover the oil and gas in the Unit without regard to their separate ownerships. The purpose of unitization is to prevent waste and maximize recovery by allocating more economically the costs and benefits under the working interest owners’ agreement.

Also, pursuant to the lease, Mobil entered into a Unit Agreement and a Unit Operating Agreement with the other working interest owners. Under the Unit Agreement, “Allo-cable Unitized Substances” are defined as almost all produced oil, gas, and associated hydrocarbons, except for “Injected Unitized Substances.” Injected Unitized Substances are substances injected back into the producing formation to maintain reservoir pressure, repressure the reservoir, cycle or recycle production, enhance production, or increase later production.

Allocable Unitized Substances (including gas) produced from the Unit are allocated among the tracts of land within the Unit according to the tracts’ respective “hydrocarbon pore volume.” Section 1.1.2 of the Unit Agreement provides that the point at which the Allocable Unitized Substances are identified and measured for purposes of allocating them among the tracts is “where such Alloca-ble Unitized Substances are available for delivery to the respective owners thereof.”

Section 10.8.1 of the Unit Agreement provides that once allocated among the “allocation tracts” in the Unit, all Allocable Unitized Substances are:

owned by the owner or owners of the Working Interest in such Allocation Tract and each owner shall take in kind or separately dispose of its share of Allocable Unitized Substances, subject to the provisions of Section 13.1 hereof and in accordance with Article 5 of the Unit Operating Agreement, (emphasis added)

As pertinent here, § 5.11 of the Unit Operating Agreement provides that:

Inability to Market All Gas. If at any time a Party’s share of the gas available for sale exceeds the quantity of gas such Party’s gas purchaser will take (excess gas), then every other Party, if requested to do so by the Party owning such excess gas, shall be obligated to share its market for gas with the Party owning such excess. However, if all excess gas cannot be sold, and the Plan of Depletion then in effect will not permit a reduction in the volume of gas produced, then any of such excess gas that must be reinjected or otherwise disposed of will be deemed to be the gas of all Parties such that all Parties will share ratably (in proportion to their ownership of the total volume of gas available for sale) in any deferral of sales or loss which might result from the reinjection or disposal of such excess gas sold on a monthly basis.

In November 1982, a representative of the royalty owners signed a Ratification Agreement to the Unit Agreement. The Ratification Agreement states that the royalty owners received “full and true copies of the Anschutz Ranch East Unit Agreement and the Anschutz Ranch East Unit Operating Agreement.”

The royalty owners admit they ratified the Unit Agreement, but deny they are parties to the Unit Operating Agreement.

The 1982 Ratification Agreement does not expressly adopt the Unit Operating Agreement. However, ratification is unnecessary under the express terms of § 7 of the lease which provides that:

Lessee also shall have the right to unitize, pool, or combine all or any part of the above described lands with other lands in the same general area by entering into a cooperative or unit plan of development or operation approved by any governmental authority.... In such event, the terms, conditions, and provisions of this lease shall be deemed modified to conform to the terms, conditions, and provisions of such approved cooperative or unit plan of development or operation. ... (emphasis added)

A. The Wyoming Litigation

From 1985-87, Mobil and TAC sold gas from the Unit to NGPL. When a dispute arose over the proper allocation of the proceeds, the working interest owners other than Mobil filed an action against TAC in the federal district court in Wyoming. The complaint alleged claims for breach of contract and sought an accounting and a determination of the working interest owners’ share of the proceeds. See Amoco Rocmount Co. v. Anschutz Corp., 7 F.3d 909 (10th Cir.1993).

More specifically, the working interest owners alleged that § 5.11 of the Unit Operating Agreement required TAC to pay all of the working interest owners, except Mobil, a portion of the revenues TAC had received from NGPL for the sale of gas from the Unit.

The royalty owners were not parties to that lawsuit. The working interest owners also did not name Mobil in the lawsuit, but TAC joined Mobil and others as third-party defendants.

In its defense, TAC maintained that § 5.11 of the Unit Operating Agreement was not operative because the working interest owners did not have the prerequisite gas purchasers, did not make the required request that TAC sell the working class owners’ share of the gas produced, and because TAC never sold any more than its own working interest share of the gas available.

Before trial, Mobil settled with the working interest owners except TAC, but Mobil remained in the lawsuit as a third-party defendant.

The Unit Agreement provided that Colorado law would govern, and the Wyoming federal district court — citing Colorado law — concluded that the term “excess gas” used in § 5.11 of the Unit Operating Agreement was ambiguous. The court reasoned that excess gas could mean either the quantity left after a purchaser has taken some gas, or any quantity of gas unsold. See Amoco Rocmount Co. v. Anschutz Corp., supra (fn.5). Hence, it was unclear whether that section of the Unit Operating Agreement required each working interest owner to have an actual gas purchaser as a prerequisite to the allocation scheme set out in the rest of § 5.11.

After concluding § 5.11 was ambiguous, the Wyoming federal district court received extensive extrinsic evidence to determine the mutual intent of the parties at the time of the contract. The court construed the Agreements to mean that: (1) § 5.11 did not require that all the working interest owners have an actual gas purchaser as a prerequisite to the allocation scheme set out in § 5.11; (2) the intent of the parties was to share pro rata in any gas market available; and (3) therefore, TAC was required to share the proceeds of its sales to NGPL with the other working interest owners. The Wyoming federal district court’s judgment construing § 5.11 adversely to TAC was affirmed on appeal. Amoco Rocmount Co. v. Anschutz Corp., supra (affirming all issues except prejudgment interest).

B. Current Litigation

In 1994, the royalty owners filed this action to recover royalties allegedly due from Mobil’s gas sales to NGPL. A dispositive issue in the current litigation is whether Mobil owned all of the gas that it sold to NGPL. If it did, Mobil would owe millions of dollars in royalties on that gas. However, if the gas that Mobil sold to NGPL was jointly owned by the other working interest owners — as Mobil contends — Mobil only would owe royalties on a fraction of the total gas sold, and it is undisputed that such lesser amount already has been paid.

The royalty owners claimed that under the lease and the Unit Agreement, they were entitled to royalties on any production allocated to Mobil,, which in this case is all the gas that Mobil sold to NGPL. According to the royalty owners:

Mobil’s entire interest in the Unit, which was approximately 20 percent, derived from the Royalty Owners’ tracts.
In summary, under the Unit Agreement, the total volume of gas produced from the Unit and made available for delivery to [working interest owners] like Mobil is allocated to the tracts of land within the Unit according to their hydrocarbon pore volume. Each [working interest owner], including Mobil, is responsible for paying royalties on any such gas sold. The amount of such royalties depends on the [working interest owner’s] particular lease.

Mobil disagreed, contending that sixty percent of the gas it sold was owned by other working interest owners under the Unit Agreement. Under Mobil’s method of allocation, the royalty owners were owed royalties only on forty percent of the gas sold, and because TAC holds a half interest, Mobil only owed royalties on twenty percent of the gas sold to NGPL. Because it is undisputed that Mobil already paid that amount, Mobil sought judgment in its favor.

C. First Summary Judgment and Appeal

In December 1996, the trial court entered summary judgment in favor of Mobil, concluding that the resolution of the Wyoming litigation barred the royalty owners’ state court action under the doctrine of collateral estoppel.

The royalty owners appealed, and a division of this court reversed the summary judgment. The panel held that at least one of the elements of collateral estoppel was unsatisfied because there was a genuine issue of material fact whether the royalty owners were in privity with TAC, one of the defendants in the Wyoming litigation. Antelope Co. v. Mobil Rocky Mountain, Inc., (Colo.App. No. 97CA0043, Dec. 26, 1997)(not selected for official publication)(Awíetope I). The panel remanded for further proceedings on the collateral estoppel issue.

D. Remand and Second Summary Judgment

On remand, the parties prepared for a jury trial. None of the parties filed a motion for summary judgment. However, approximately one week before the trial date, Mobil filed a motion in limine to exclude the introduction of parol evidence, asserting that:

the contractual provisions which govern the payment of royalties from [Mobil] to [the royalty owners] are clear and unambiguous — a finding previously determined by [the trial court].

Mobil thus sought a ruling that, because the trial court had previously ruled that the relevant agreements were unambiguous as a matter of law, parol evidence pertaining to the Wyoming litigation was inadmissible for purposes of contract interpretation or determination of the parties’ intent.

On the morning of trial, the trial court — a different judge presiding — addressed Mobil’s motion in limine. The royalty owners took the position that whether parol evidence was admissible first required the trial court to determine whether collateral estoppel applied with respect to the Wyoming litigation. The court agreed, and proceeded to hear initial arguments from the parties as to whether the collateral estoppel issue was proper for the court to decide, or whether— as Mobil asserted — it was a jury question.

After concluding it had the authority to decide the collateral estoppel issue, the trial court heard arguments addressing whether collateral estoppel should be applied against the royalty owners. Although the court engaged in a lengthy colloquy with counsel, no testimony was taken and it is unclear whether the court considered the exhibits that had been tendered without objection for the anticipated jury trial.

In an oral ruling following counsel’s arguments, the trial court responded to the collateral estoppel issue addressed by the panel in Antelope I by ruling that collateral estoppel did not apply. It determined that the interests of TAC, a defendant in the Wyoming litigation, and the interests of the royalty owners, who are plaintiffs here, were not the same. Hence, the trial court found as a matter of law that there was no privity between them and that Mobil was not entitled to assert collateral estoppel or issue preclusion as to the royalty owners.

The trial court went on to hear arguments regarding the ambiguity of the Agreements. Following these arguments, the court expressed its disagreement with the Wyoming federal district court’s ruling that the Agreements were ambiguous, and instead ruled that: (1) while the contracts were “highly complex,” they were not ambiguous; (2) the gas Mobil sold to NGPL was jointly owned by the other working interest owners; (3) the Agreements unambiguously supported Mobil’s position that it only owned a fraction of the gas it sold to NGPL and therefore only owed royalties on a fraction of the total gas sold; and (4) the full amount owed had already been paid.

The trial court did not rule on Mobil’s motion in limine. It stated sua sponte that it was treating the motion “as essentially a renewal of the motion for summary judgment,” and then entered summary judgment in favor of Mobil. The royalty owners now appeal from that ruling.

II. Prior Division’s Failure to Rule

Initially, we reject the royalty owners’ contention that the trial court erred in granting summary judgment because a division of this court previously declined to rule that the Agreements were unambiguous.

Our review of an order granting a motion for summary judgment is de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, 901 P.2d 1251 (Colo.1995).

Summary judgment is a drastic remedy and should be granted only upon a clear showing that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Compass Insurance Co. v. City of Littleton, 984 P.2d 606 (Colo.1999).

All doubts as to the existence of a genuine issue of material fact are resolved in favor of the nonmoving party. Kaiser Foundation Health Plan v. Sharp, 741 P.2d 714 (Colo.1987). Summary judgment may not be granted when the pleadings and affidavits submitted to the trial court show there are material facts in dispute. McCormick v. Diamond Shamrock Corp., 175 Colo. 406, 487 P.2d 1333 (1971).

Here, the trial court’s 1996 ruling that the royalty owners were collaterally es-topped from suing Mobil was reversed in the prior appeal. Antelope I. However, the ambiguity of the Agreements was not the basis of the trial court’s 1996 judgment, and resolution of that issue was unnecessary to the disposition of the prior appeal. See Smeal v. Oldenettel, 814 P.2d 904 (Colo.1991)(appellate courts should avoid addressing issues that are unnecessary to disposition of the appeal).

In fact, the prior division clarified that: Although we recognize that the trial court does make reference in its written order to the issue of contract interpretation, in our view, such reference was in the context of its discussion of the issue of collateral es-toppel.

Antelope I, supra (slip op. at 3).

Accordingly, because the division in Antelope I reversed the trial court while addressing the issue of collateral estoppel, its failure to address whether the Agreements were unambiguous has no bearing on the issues now before us.

III. Second Summary Judgment

Nevertheless, we do agree with the royalty owners’ contention that the trial court erred in granting the summary judgment before us now.

C.R.C.P. 56 contemplates that opposing parties will be provided an opportunity to respond to authority cited in support of or in opposition to a motion for summary judgment. People in Interest of A.E., 914 P.2d 534 (Colo.App.1996). C.R.C.P. 16 provides that a trial court should enter a trial management order before the actual trial, listing deadlines for filing pretrial motions and requiring the parties to file motions at least fourteen days before trial.

An issue not raised by the moving party in the motion or brief cannot serve as the basis for summary judgment because the nonmoving party is not put on notice of the need to present evidence concerning that issue. See Jefferson County School District R-l v. Justus, 725 P.2d 767 (Colo.1986); Wattman v. Kelley, 976 P.2d 330 (Colo.App.1998).

Interpretation of a written contract is a question of law for the court. B & B Livery, Inc. v. Riehl, 960 P.2d 134 (Colo.1998). Similarly, whether a contract is ambiguous is a question of law and is reviewed de novo. Branscum v. American Community Mutual Insurance Co., 984 P.2d 675 (Colo.App.1999). A contract term is ambiguous if it is reasonably susceptible to more than one meaning, but the potential for more than one interpretation does not, in itself, create ambiguity. Allstate Insurance Co. v. Juniel, 931 P.2d 511 (Colo.App.1996).

To ascertain whether an agreement is ambiguous, the agreement’s language should be construed with the plain and generally accepted meaning of the words employed. USI Properties East, Inc. v. Simpson, 938 P.2d 168 (Colo.1997). Contracts should be interpreted to effectuate the intent of the parties and the purpose of the contract. Branscum v. American Community Mutual Insurance Co., supra.

The intent of the parties should be determined from the language of the contract itself, Humphrey v. O’Connor, 940 P.2d 1015 (Colo.App.1996), and extrinsic evidence of intent is not admissible until the contract has been found to be ambiguous. In re Marriage of Thomason, 802 P.2d 1189 (Colo.App.1990).

Here, it is unclear whether, during the hearing on Mobil’s motion in limine, the trial court admitted or considered exhibits or any other evidence even though counsel offered exhibits without objection. This uncertainty is reflected in the royalty owners’ later motion seeking the trial court’s clarification whether it had considered any exhibits or other evidence in making its ruling.

In addition, on the morning of trial, the court transformed the motion in limine hearing into a hearing for summary judgment although none of the parties had moved for summary judgment on remand. While certain circumstances may justify such a procedure — for example, where there clearly are undisputed facts — in this ease the panel in the prior appeal reversed the prior summary judgment, after concluding there were unresolved issues of fact regarding whether all the elements of collateral estoppel were met, especially the issue of privity.

Given these circumstances, we conclude that the trial court’s decision to grant summary judgment, without notice to the parties and a reasonable opportunity for them to argue the disputed issues of fact and to submit affidavits and other evidence, resulted in prejudice to the royalty owners. Cf. Benson v. Colorado Compensation Insurance Authority, 870 P.2d 624 (Colo.App.1994)(rejecting party’s argument that it lacked a meaningful opportunity to respond to opposing party’s motion for summary judgment, where nonprevailing party was permitted to present argument at reconsideration hearing and also failed to show prejudice). Hence, the summary judgment cannot stand.

Contrary to Mobil’s contention, we further conclude the factual determination of the privity issue should be made by the court, not by the jury. See Lowell Staats Mining Co. v. Philadelphia Electric Co., 878 F.2d 1271 (10th Cir.l989)(determination of identity between litigants for the purpose of establishing privity is a factual question for the trial court); People v. Tynan, 701 P.2d 80 (Colo.App.1984)(identity of parties or their privies for res judicata purposes was a factual determination made by the trial court).

On remand, the trial court should conduct a hearing on the privity issue and allow the parties a reasonable opportunity to present evidence in accordance with C.R.C.P. 56.

IV. Collateral Estoppel

Because they will arise on remand, we next address the arguments of the royalty owners and Mobil — based on different theories — that the trial court erred in determining the applicability of collateral estoppel to this proceeding. Both sides claim some benefit from the Wyoming federal district court’s ruling based on collateral estoppel.

The royalty owners contend that Mobil is bound by the Wyoming federal district court’s conclusion that § 5.11 of the Unit Operating Agreement is ambiguous, and that under the doctrine of collateral estoppel, Mobil was precluded from taking an inconsistent position in this case. Mobil contends that it was entitled to assert the defense of collateral estoppel against the royalty owners and that the trial court erred in ruling otherwise.

A. Offensive Collateral Estoppel

Initially, we note that the royalty owners raised the issue of offensive nonmu-tual collateral estoppel in the trial court and again in this appeal. However, they did not raise it in the trial court until after the court had ruled collateral estoppel was inapplicable. Nevertheless, because the issue will arise on remand, we address whether offensive nonmutual collateral estoppel applies and precludes Mobil from relitigating any issue that was decided by the Wyoming federal district court. We conclude that it does.

Collateral estoppel (or issue preclusion) precludes the relitigation of an issue if: (1) the issue precluded is identical to an issue actually litigated and necessarily adjudicated in the prior proceeding; (2) the party against whom estoppel is sought was a party to or was in privity with a party to the prior proceeding; (3) there was a final judgment on the merits in the prior proceeding; and (4) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding. Michaelson v. Michaelson, 884 P.2d 695 (Colo.1994).

Offensive nonmutual collateral es-toppel occurs when a plaintiff seeks to preclude a defendant from relitigating an issue that the defendant previously litigated unsuccessfully in another action against another party. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979).

In Central Bank Denver, N.A. v. Mehaffy, Rider, Windholz & Wilson, 940 P.2d 1097, 1103 (Colo.App.1997), a panel of this court explained that application of that type of estoppel is discretionary:

When the doctrine of collateral estoppel was expanded to include offensive collateral estoppel, its application was made discretionary with the trial court because it does not promote judicial economy in the same way as defensive nonmutual collateral estoppel and because it often will be unfair to defendants.

Mobil concedes that three of the four requirements of issue preclusion have been met, and we agree. First, the Wyoming federal district court examined the same Agreements that are in dispute here and concluded that § 5.11 of the Unit Operating Agreement was ambiguous. Hence, one issue that was actually litigated in the prior proceeding is identical to an issue in this ease. Second, Mobil is a party in this action and was a party in the Wyoming action. Also, there was a final judgment on the merits in that prior proceeding.

The only element of collateral estoppel in dispute is whether Mobil had a full and fair opportunity to litigate the issue of § 5.11’s ambiguity in the Wyoming litigation. Mobil contends that element has not been met, and collateral estoppel is inapplicable because it was merely a third-party defendant in the Wyoming litigation. We are not persuaded.

To determine whether a party has received a full and fair opportunity to litigate an issue in an earlier action, the following factors are considered: (1) whether the remedies and procedures of the first proceeding are substantially different from those in the proceeding in which collateral estoppel is asserted; (2) whether the party in privity with the party against whom collateral estoppel is sought had sufficient incentive to litigate vigorously; and (3) the extent to which the issues are identical. Bebo Construction Co. v. Mattox & O’Brien, P.C., 990 P.2d 78 (Colo.1999).

Before trial, Mobil settled with the working interest owners except for TAC. Nevertheless, Mobil was a named party to the Wyoming litigation and remained so. The record reflects that Mobil’s counsel was present throughout the testimony, that its interests were in alignment with the other defendant, TAC, and that both TAC and Mobil had sufficient incentive to litigate vigorously the interpretation of the Agreements. In its brief filed in support of its motion for summary judgment, Mobil also admitted that, “as a party to TAC’s third-party complaint for a declaratory judgment on the meaning of Section 5.11, Mobil is bound by the Court’s ruling in the Wyoming Litigation.”

We therefore conclude that the doctrine of collateral estoppel precludes Mobil from re-litigating the issue of the ambiguity of § 5.11 of the Unit Operating Agreement and that the trial court erred in ruling otherwise. Accordingly, Mobil is bound by the federal court’s conclusions that: (1) § 5.11 is ambiguous as a matter of law; (2) the proceeds of all natural gas sold from the unit shall be distributed pro rata among all the working interest owners; and (3) § 5.11 does not require that a party actually have a gas purchaser before any of its share of the “gas available for sale” can be considered “excess gas,” or before the market sharing provisions otherwise go into effect.

B. Defensive Collateral Estoppel

Mobil contends in its cross-appeal the trial court erred in determining that Mobil was not entitled to assert the defense of collateral estoppel. Mobil maintains that TAC, a party in the Wyoming litigation, was in privity with the plaintiffs in this action, and the first trial court so found. We conclude further proceedings are necessary on this issue.

As noted earlier, in Antelope I, a panel of this court reversed the summary judgment entered by the first trial court, after concluding at least one of the elements of collateral estoppel was unsatisfied because there was a genuine issue of material fact whether the royalty owners were in privity with TAC. The prior panel then remanded for a factual determination on that issue.

On remand, the trial court responded to the collateral estoppel issue addressed by the panel in Antelope I by ruling that collateral estoppel did not apply. It determined that the interests of TAC and the interests of the royalty owners were not the same. The trial court thus found as a matter of law that there was no privity between them and that Mobil was not entitled to assert collateral estoppel or issue preclusion as to the royalty owners. The trial court also concluded that the issue sought to be precluded in this action was not identical to the issue actually litigated and necessarily adjudicated in the Wyoming proceeding. See Restatement (Second) of Judgments § 27 (1982)(when an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties).

However, while the trial court found there was no privity, we are unable to determine the evidentiary basis for its finding. We therefore conclude the factual issue of privity must be reconsidered on remand. Again, contrary to Mobil’s contention, the factual determination of the privity issue in this context should be made by the court, not by the jury. See Lowell Staats Mining Co. v. Philadelphia Electric Co., supra.

Accordingly, on remand, the trial court should resolve the issue whether there was privity between TAC and plaintiffs, and whether Mobil is entitled to assert the defense of collateral estoppel against the royalty owners.

V. Remaining Issues

Because the parties raise several additional contentions that will arise on remand, we address them here.

A. Royalty Owners Bound by Unit Operating Agreement

The royalty owners contend § 10.8.1 of the Unit Agreement is ambiguous because it refers to § 5 of the Unit Operating Agreement, which applies only to “parties,” and the royalty owners deny they are parties to that agreement. We disagree.

Not only does the lease bind the royalty owners and Mobil, but in November 1982, the royalty owners’ representative signed a Ratification Agreement to the Unit Agreement. The Ratification Agreement acknowledges that the royalty owners received “full and true copies” of the Unit Agreement and the Unit Operating Agreement. Although the Ratification Agreement does not expressly adopt the Unit Operating Agreement, ratification is unnecessary under the express terms of § 7 of the lease.

We thus reject the royalty owners’ contention that they are not parties to the Unit Operating Agreement and are not bound by its terms.

B. § 5.11 of Unit Operating Agreement Governs

The royalty owners next contend the trial court erred in determining that § 5.11 of the Unit Operating Agreement applies to them. According to the royalty owners, § 10.8.1 of the Unit Agreement governs the payments of royalties to royalty owners, whereas Section 5 of the Unit Operating Agreement governs the allocation of gas among working interest owners. Alternatively, the royalty owners contend that even if section 5 applies, the trial court should have applied § 5.9 instead of § 5.11, and that the trial court on remand did not properly consider their argument regarding the applicability of § 5.9. We disagree.

Following the remand from the first appeal, the trial court determined that § 10.8.1 of the Unit Agreement ambiguously references article 5 of the Unit Operating Agreement, and that the applicable portion was § 5.11. Contrary to the contention of the royalty owners, the meaning of § 10.8.1’s reference to Article 5 was an issue that was properly resolved by the trial court rather than the jury.

Section 5.9 is entitled “taking in Kind,” and provides:

Each Party shall currently, as produced, take in kind or separately dispose of its share of Allocable Unitized Substances .... Except as otherwise provided in Section 5.10 or 5.11, each Party shall be entitled to receive directly all proceeds from the sale of its share of Unitized Substances sold.

In concluding that § 10.8.1 referred to § 5.11 of the Unit Operating Agreement, the trial court reasoned that:

Section 10-8-1 also goes on to state that each such owner shall take in kind or separately dispose of his share, skipping some language, in accordance with Article 5 of the [Unit] Operating Agreement.
And the question is, what is the share as used in 10.8.1? Since 10.8.1 specifically ... states, “in accordance with Article 5 of the Operating Agreement,” it’s clear from the language of the Unit Agreement that in determining what is Mobil’s share, that reference needs to be made to Article 5 of the [Unit] Operating Agreement.
[S]ection 5.11 of the [Unit] Operating Agreement states that excess gas which is reinjected will be deemed to be the gas of all parties such that all parties will share ratably in a deferral of sales or loss. Therefore, it is clear from the Unit Agreement that in determining its share, it’s needed to refer to section 5 of the [Unit] Operating Agreement, and it’s clear from the [Unit] Operating Agreement that [its] share under these circumstances [is] defined by 5.11.

We perceive no basis for disturbing the trial court’s conclusions that: (1) the language, “in accordance with Article 5,” contained in § 10.8.1 of the Unit Agreement was intended to reference § 5.11 of the Unit Operating Agreement; and (2) § 5.11 governs the payment of royalties to the royalty owners.

The trial court’s conclusion that § 5.11 governs is also supported by the decision of the federal district court to the extent that the federal court, in the earlier proceedings, rejected essentially the same argument that is now being made by the royalty owners regarding the proper construction of § 5.11. In the royalty owners’ reply brief filed in this appeal, they state their position regarding 5.11 as follows:

The Royalty Owners’ position, in contract, [to Mobil’s position] is firmly grounded in all the language of Section 5.11. When the parties to the Operating Agreement (including Mobil) defined “excess gas” in terms of “gas available for sale [which] exceeds the quantity of gas such party’s gas purchaser will take,” they intended that a party must actually have a gas purchaser who will not take a portion of a party’s gas before that gas becomes “excess gas.” In their offer of proof in the trial court, the Royalty Owners stated that they were prepared to prove as a matter of fact that the Agreements actually require that a WIO have a gas purchaser before any of its share of the “gas available for sale” can be considered “excess gas.”
Thus the royalty owners contend “a trial is required to determine what the parties meant by the reference to article 5 in § 10.8.1”. (original emphasis)

The Wyoming federal district court rejected the argument — made by certain of the working interest owners there and by the royalty owners here — that § 5.11 required a working interest owner to have a gas purchaser before its share of the “gas available for sale” could be considered “excess gas.” To the contrary, the federal district court found in its Findings of Facts and Conclusions of Law entered on July 30, 1990, that: “[T]he evidence overwhelmingly supports the conclusion that all parties intended § 5.11 to be a market sharing provision without a gas purchaser prerequisite.”

Although the Wyoming federal district court did not specifically address § 10.8.1 of the Unit Agreement, it referred to § 5.9 and § 5.11 of the Unit Operating Agreement before concluding that § 5.11 applied and governed the allocation of gas among the working interest owners.

Accordingly, we uphold the trial court’s conclusion that § 10.8.1 of the Unit Agreement was intended to reference § 5.11 of the Unit Operating Agreement, and that § 5.11 governs the payment of royalties to the royalty owners.

C. § 13.1.2 of the Unit Agreement

Mobil next asserts that § 13.1.2 of the Unit Agreement, which addresses royalty payments, requires the same result reached by the trial court on remand. However, this issue was not addressed by the trial court, and we do not address it here. It may be considered on remand.

VI. Conclusion

The summary judgment entered in favor of Mobil is reversed, as are the orders determining that the royalty owners and Mobil were not entitled to assert the defense of collateral estoppel, and the cause is remanded for further proceedings. The trial court shall conduct such further proceedings as are consistent with the views expressed in this opinion, including our holdings that: (1) the royalty owners are parties to the Unit Operating Agreement and are bound by its terms; (2) § 10.8.1 of the Unit Agreement was intended to reference § 5.11 of the Unit Operating Agreement; and (3) § 5.11 governs the payment of royalties to the royalty owners.

On remand, Mobil may not relitigate whether § 5.11 of the Unit Operating Agreement is ambiguous, but is bound by the federal court’s conclusions, as outlined in section IV of this opinion.

On remand, the trial court also should conduct a hearing and determine whether privity exists between TAC and the royalty owners. It if so finds, the court should permit Mobil to assert the defense of collateral estoppel against the royalty owners Mobil also may assert on remand that it is entitled to summary judgment based on § 13.1.2 of the Unit Agreement.

TAUBMAN and ROY, JJ., concur.


source: Caselaw Access Project

author: Judge ROTHENBERG. Judge TAUBMAN

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Antonio M. MEDINA, Defendant-Appellant.
    No. 99CA0980.
    Colorado Court of Appeals, Div. V.
    June 21, 2001.
    Rehearing Denied Sept. 6, 2001.

    Certiorari Granted July 22, 2002.

      Ken Salazar, Attorney General, Lauren A. Edelstein, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Dana Nichols, Deputy State Public Defender, Kathleen Lord, Deputy State Public Defender, Denver, CO, for Defendant-Appellant.

       Taubman, J., would GRANT.

   Opinion by

Judge ROTHENBERG.

Defendant, Antonio M. Medina, appeals the judgment of conviction entered on a jury verdict finding him guilty of second degree murder. We affirm.

According to the prosecution’s evidence, defendant attended a party on August 29, 1996. There was evidence that defendant left the party with the victim, her boyfriend, and another man, that they walked to a nearby park, and that the victim agreed to have sex with defendant there while her boyfriend watched. The other man left.

The boyfriend testified that: (1) defendant was unable to obtain an erection and the victim had laughed at him; (2) after the attempted sex, he, defendant, and the victim had walked to the boyfriend’s home; (3) defendant and the victim continued to walk together; and (4) everything appeared normal at that time.

That was the last time the victim was seen alive.

The prosecution also called defendant’s wife as a witness. She testified that on the day after the party, when she awoke defendant was gone. He called her a few hours later from an auto body shop and said he needed a cab. When he returned home in the cab, he told her there had been “an accident and that a girl was killed.” According to the wife:

[Defendant] said they were at a party and the girl was asking for money, and she kept hitting him in the chest and he was trying to walk away, and he told her to get out of his face, and he had finally had enough, and then he punched her in the throat, and she fell down, and he left [the party].

The wife testified that defendant also said he had left the body in a park and then had taken it to another location and had left it there. He reported that their car had become stuck in the mud near where he had left the victim’s body, and he insisted that the wife accompany him to help retrieve it. The wife helped him rent a chainsaw to free the vehicle, and she saw the body.

She further testified that defendant left their house several times in the middle of the night to cheek on the body and that he later moved the body several times.

Defendant gave his wife other versions of the events. He told her he had hit “the girl” in the throat at the party, and when he did so, “[h]e pulled back her hair and punched her in the throat,” and then heard her neck “pop and crack.” He said that after hitting her, he had left her at the party, and “some other guys had taken her into the house, and he had left.”

In another version, he told her that he had gotten into a fight at the party, that the victim had tried to break up the fight, and that she got “pushed” and fell down and hit her head. In still another version, he said that the victim had asked him for $100 in exchange for sex, that he was unable to pay that amount, that they got into an argument, that he hit her in the chest, and that she fell down and hit her head.

The prosecution called four witnesses who were at the party, and none reported observing a fight or any type of altercation at the party.

In addition to the wife’s testimony regarding what defendant had told her, she also testified that: (1) he began to have insomnia and to experience nightmares over the killing; (2) two weeks after the homicide, he insisted that they move to New Mexico; and (3)while in New Mexico, he became suspicious of her phone calls, listened to her conversations, constantly kept her near him, and even brought her to work with him at times.

The wife eventually called her mother, who in turn alerted the police. Shortly thereafter, defendant and his wife returned to Colorado, and the police set up a surveillance operation. Several police investigators testified at trial that they saw defendant travel to a remote location, get out of his vehicle, look around, and then leave. Investigators later exhumed the victim’s body from the same area and arrested defendant.

On the morning of trial, the People moved to admit evidence from defendant’s wife that defendant had phoned her from jail. According to the wife, defendant told her she held his life in her hands and she was the only person who could get him out of the situation. He urged her to change her story, to refuse to testify at trial, and to say that the police had frightened her into lying at the preliminary hearing. The People contended this evidence was admissible under CRE 404(b) or as res gestae, and over defendant’s objection, the trial court admitted the evidence under both theories. The court instructed the jury that the evidence should only be considered to show “absence of mistake and absence of accident.”

The pathologist testified that he could not pinpoint the victim’s cause of death because her body was so deteriorated at the time of the autopsy that her internal organs had liquified, and the body was too decomposed to reveal bruises on her neck. The pathologist also testified on direct examination that the victim could not have died from a fall hitting her head or from “a severe jerking to her neck such as being pulled by the hair,” but that it was possible she died from a very hard blow to her neck or from a very hard push or shove to her chest area by a “commando chop or a commando blow [to the neck].” On cross-examination, however, the pathologist stated that the blow did not have to be hard to be fatal.

I.

Defendant first contends the trial court abused its discretion in denying his motion to dismiss based on outrageous governmental conduct. We disagree.

Colorado recognizes the due process claim of outrageous governmental conduct. Bailey v. People, 630 P.2d 1062 (Colo.1981). Outrageous governmental conduct is conduct that violates fundamental fairness and is shocking to the universal sense of justice. People v. Johnson, 987 P.2d 855 (Colo.App.1998).

Whether the circumstances presented bar prosecution under principles of due process is for the trial court to determine based upon the totality of facts in a given case. People v. Aponte, 867 P.2d 183 (Colo.App.1993). This determination lies within the trial court’s discretion and will not be overturned on appeal absent an abuse of that discretion. People in Interest of M.N., 761 P.2d 1124 (Colo.1988).

An abuse of discretion occurs where the trial court’s ruling is manifestly arbitrary or unreasonable. People v. Czemerynski, 786 P.2d 1100 (Colo.1990).

In People v. Auld, 815 P.2d 956 (Colo.App.1991), on which defendant heavily relies, law enforcement officials conducted ■ undercover activities aimed at drug trafficking and also targeted the defendant, who was an attorney. Government agents filed a fictitious complaint in court against a “Colton Young,” which was the alias of an undercover agent. “Defendant Young” was charged with a fictitious crime, brought before the court, and made several false statements to the judge. The judge was unaware of Young’s true identity. Young then retained the attorney who was the target of this sting operation.

When the attorney later was arrested for theft by receiving and possession of a dangerous weapon, the district attorney offered to dismiss the charges if the attorney provided information about a number of persons, including present or former clients. He refused and moved to dismiss the information based on alleged outrageous governmental conduct.

The trial court granted the motion, and a division of this court affirmed. The division agreed with the trial court that dismissal was an appropriate remedy because law enforcement officials had implicated the court in law enforcement activities, and the integrity of the court had been compromised.

In contrast, here, the court found that the conduct of the law enforcement authorities had been inappropriate, but concluded it was not so outrageous as to violate fundamental due process. The court found that police officers had acted improperly by: (1) failing to advise defendant of his Miranda rights; (2) failing to determine whether he understood his right to counsel; (3) continuing to interrogate defendant after he had invoked his right to counsel; (4) failing to determine whether he was represented by counsel before interviewing him; and (5) engaging in coercive police conduct by making promises and threats to defendant.

However, after examining the totality of the circumstances, and taking into account the need to balance the rights of defendants with the state’s authority to bring criminal prosecutions against those alleged to have committed crimes, the trial court concluded the proper remedy was suppression of defendant’s statements to the police. By suppressing the statements attained through the officers’ inappropriate behavior, the court effectively maintained the fundamental fairness of the proceedings.

Unlike the circumstances in Auld, the integrity of the court was not compromised here, and the conduct of the law enforcement authorities did not impair defendant’s ability to prepare or present his defense. Accordingly, we perceive no abuse of discretion by the trial court in denying defendant’s motion to dismiss for outrageous governmental conduct.

II.

Defendant next contends the trial court erred in admitting the wife’s testimony about his phone call from jail. We conclude that the testimony regarding defendant’s statements was not properly admitted as part of the res gestae, but that it was admissible under CRE 404(b).

A.

Res gestae evidence provides the factfinder with a complete understanding of the events surrounding the crime and the context in which the crime occurred, including events closely related in time and nature to the charged offense. Res gestae evidence is not subject to the general rule of CRE 404(b) that excludes evidence of prior criminality. People v. Quintana, 882 P.2d 1366 (Colo.1994).

Evidence that is not contemporaneous with the crime charged and does not illustrate its character is not part of the res gestae. See People v. Frost, 5 P.3d 317 (Colo.App.1999) (defendant’s statements relating to other acts were not res gestae because they were made several months after the alleged offense). Thus, because the statements defendant made to his wife occurred more than two years after the crime and, even if true, implicated him in the separate crime of witness tampering, they cannot be characterized as part of the res gestae. See People v. Frost, supra.

B.

Evidence of other crimes, wrongs, or acts is generally inadmissible to prove a witness’s character or show his or her propensity for such conduct. However, it may be admitted under CRE 404(b) for other purposes, such as to show the absence of mistake or accident or to show consciousness of guilt. People v. Adams, 867 P.2d 54 (Colo.App.1993).

Trial courts have substantial discretion in determining the admissibility of similar transaction evidence, and a reviewing court will not overturn that ruling absent an abuse of that discretion. People v. Frost, supra.

Before evidence of other acts is admissible, the prosecution must show that: (1) the evidence relates to a material fact; (2) the evidence has logical relevance in that it adds to the probability that the material fact is true; (3) the logical relevance of the evidence does not depend on an intermediate inference that the litigant has a bad character, which would be employed to support a further inference that the litigant acted in conformity with his bad character; and (4) the probative value of the evidence is not substantially outweighed by the evidence’s prejudicial impact. People v. Spoto, 795 P.2d 1314 (Colo.1990).

Here, the trial court admitted defendant’s statements to his wife under CRE 404(b) to show the absence of accident and mistake. The People do not urge that rationale on appeal. Nevertheless, they maintain that the evidence was admissible to show the defendant’s consciousness of guilt and that the court’s ruling should be upheld on that basis. See People v. Quintana, supra (a trial court’s ruling will not be reversed if it reached a correct result, albeit by an incorrect analysis).

We agree the evidence was admissible under CRE 404(b) to show defendant’s consciousness of guilt because it showed his knowledge of the crime as well as his attempt to conceal his role in the victim’s death by persuading his wife not to testify. Nor was the probative value of the evidence substantially outweighed by the evidence’s prejudicial impact, especially given the trial court’s limiting instruction to the jury. Therefore, we conclude the court did not abuse its discretion in admitting the wife’s testimony under CRE 404(b).

III.

Defendant next contends the trial court erred in denying his motion for acquittal of second degree murder on the ground that the evidence was insufficient to sustain a verdict on that charge. We are not persuaded.

When ruling on a motion for judgment of acquittal, the trial court must determine whether the evidence, viewed as a whole and in the light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a reasonable mind that the defendant is guilty of the charge beyond a reasonable doubt. We may not disturb the trial court’s ruling on such a motion absent an abuse of discretion. People v. Jones, 990 P.2d 1098 (Colo.App.1999).

To establish second degree murder, the People must prove that the victim’s death was more than merely a probable result of the defendant’s actions and that the defendant was aware of the circumstances that made the death practically certain. People v. Baca, 852 P.2d 1302 (Colo.App.1992).

A defendant’s awareness of the circumstances that made the death practically certain may be inferred from the defendant’s conduct and all of the surrounding circumstances. People v. Hall, 999 P.2d 207 (Colo.2000); People v. Mingo, 196 Colo. 315, 584 P.2d 632 (1978). The jury is entitled to consider such inferences and the weight to be given to them in determining whether the People have proved the required criminal intent beyond a reasonable doubt. People v. Mingo, supra.

Admittedly, here, much of the evidence was circumstantial, but in determining sufficiency the law makes no distinction between direct and circumstantial evidence. People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973); see COLJI Crim. No. 4:01 (1983).

Defendant was the last person seen with the victim, and according to the testimony of defendant’s wife, he admitted striking the victim in the throat. The pathologist testified that such a blow could have caused the death of the victim. The wife also testified that after the killing, defendant engaged in an elaborate cover-up of the victim’s body, moving it several times, and finally burying it under a bridge after discarding the victim’s clothing. He also forced his wife to move to New Mexico with him on very short notice, and she testified that he had recurring nightmares of ghosts that would “get him like he got [the victim].”

After they returned to Colorado, defendant went to the burial site three more times to ensure that it had not been disturbed, and a police detective testified that during the surveillance, he saw defendant drive to the location in which the body was later found. Defendant got out of his vehicle, looked around the area, and then drove away. After defendant’s arrest, wife stated that he had called her, pressuring her to refuse to testify against him.

Viewing defendant’s admissions, his conduct, and the surrounding circumstances in the light most favorable to the prosecution, see People v. Osborne, 973 P.2d 666 (Colo.App.1998), we conclude the jury could reasonably have inferred that the victim’s death was not accidental and more than merely a probable result of defendant’s actions, but rather, that defendant was aware of the circumstances that made the victim’s death practically certain. See People v. Baca, supra.

Accordingly, we reject defendant’s contention that his motion for judgment of acquittal should have been granted based on insufficient evidence.

IV.

Defendant next contends the trial court erred when it instructed the jury on second degree murder and reckless manslaughter, but refused to instruct on the lesser included offense of criminally negligent homicide. We conclude any such error was harmless as a matter of law.

It is undisputed that reckless manslaughter and criminally negligent homicide are lesser included offenses of second degree murder. Second degree murder occurs when a person “knowingly causes the death of a person.” Section 18-3-103(1), C.R.S.2000. Persons act knowingly with respect to conduct or circumstances defined as part of the offense when they are aware that their conduct “is of such nature or that such circumstance exists.” Persons act knowingly with respect to a result of their conduct when they are aware that their conduct “is practically certain to cause the result.” Section 18-1-501(6), C.R.S.2000.

A person commits reckless manslaughter if he or she recklessly causes the death of another person. Section 18-3-104(l)(a), C.R.S.2000. A person acts recklessly when he or she consciously disregards a substantial and unjustifiable risk that a result will occur. People v. Garcia, 1 P.3d 214 (Colo.App.1999)(ceri. granted May 22, 2000). In the commission of reckless manslaughter, the actor causes death by acting in a manner that involves a substantial and unjustifiable risk of death of the victim, and although the actor is conscious of the risk, he or she nevertheless chooses to engage in the action. Moore v. People, 925 P.2d 264 (Colo.1996).

Criminally negligent homicide is an unintentional killing caused by the actor’s failure to perceive a substantial and unjustifiable risk that a certain result will occur. People v. Castro, 10 P.3d 700 (Colo.App.2000). Under § 18-1-501(3), C.R.S.2000, a person acts with criminal negligence when [t]hrough a gross deviation from the standard of care that a reasonable person would exercise, he fails to perceive a substantial and unjustifiable risk that a result will occur or that a circumstance exists.

Here, even if we assume the trial court erred in failing to instruct on criminally negligent homicide, we conclude that any such error was harmless as a matter of law because the jury found defendant guilty of the charged offense and rejected the lesser included offense of reckless manslaughter.

A.

In analyzing the standard of review regarding the failure to give an instruction on a lesser included offense, we initially observe that the majority of the federal circuits addressing the issue have held that the failure of a state court to instruct on a lesser included offense in a noncapital ease never raises a federal constitutional question. Pitts v. Lockhart, 911 F.2d 109 (8th Cir.1990); Valles v. Lynaugh, 835 F.2d 126 (5th Cir.1988); Chavez v. Kerby, 848 F.2d 1101 (10th Cir.1988). See Beck v. Alabama, 447 U.S. 625, 637, 100 S.Ct. 2382, 2389, 65 L.Ed.2d 392, 402 (1980)(“we have never held that a defendant is entitled to a lesser included offense instruction as a matter of due process”); People v. Sakarias, 22 Cal.4th 596, 94 Cal. Rptr.2d 17, 995 P.2d 152 (2000)(trial court’s failure to give lesser included offense should be analyzed under state law standard of prejudice, which is whether the error was harmless).

Hence, we conclude that the failure to give a lesser included instruction in this case is not subject to review under the constitutional standard of harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)(establishing harmless error standard where constitutional right has been violated).

In so holding, we acknowledge that Gallegos v. People, 136 Colo. 321, 316 P.2d 884 (1957), suggests the failure to give a lesser included instruction implicates a constitutional right, but Gallegos was decided before Chapman v. California, supra. Further, the supreme court did not mention Chapman or the harmless-beyond-a-reasonable-doubt standard when addressing the alleged instructional errors in People v. Bartowsheski, 661 P.2d 235 (Colo.1983); People v. Shaw, 646 P.2d 375 (Colo.1982); People v. Favors, 192 Colo. 136, 556 P.2d 72 (1976); and People v. Mullins, 188 Colo. 23, 532 P.2d 733 (1975).

In People v. Romero, 694 P.2d 1256, 1269 (Colo.1985) the supreme court also treated the defendant’s failure to request a lesser included offense instruction as a waiver, stating: “[I]t may reasonably be assumed that he elected to take his chance on an outright acquittal or conviction of the principal charge rather than to provide the jury with an opportunity to convict on a lesser offense.”

Because courts indulge every reasonable presumption against the waiver of fundamental constitutional rights, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); People v. Curtis, 681 P.2d 504 (Colo.1984), it is reasonable to infer that the court in Romero did not view the giving of a lesser included instruction as a fundamental state constitutional right.

B.

There are two lines of cases, which appear to be inconsistent with each other, that have addressed the consequence of a trial court’s failure to give a lesser included offense instruction. One line of eases has held that the trial court’s refusal to instruct on a lesser included offense is reversible error if there is evidence, however slight, tending to establish the lesser included offense. See People v. Shaw, supra.

In Shaw, the defendant’s charges included first degree murder and felony murder. The court instructed the jury on second degree murder, but refused to instruct on reckless manslaughter and criminally negligent homicide. After the jury found defendant guilty of second degree murder, he appealed and the supreme court held that the trial court’s failure to instruct on the lesser included offenses required reversal.

However, other cases have held that the trial court’s refusal to instruct on a lesser included offense may constitute harmless error.

In People v. Favors, supra, the defendant was charged with first degree murder and the trial court also instructed the jury on the lesser included offense of second degree murder, but refused to instruct on manslaughter. The jury convicted the defendant of first degree murder and defendant appealed. The supreme court concluded that any error by the trial court in refusing to instruct on manslaughter was harmless because the jury had convicted on the higher charge and had rejected the less serious offense of two alternatives. The court reasoned that:

Failure to instruct on an even less serious offense than second-degree murder, in light of the jury’s verdict for the most serious possible offense, does not comport with an inference of prejudice and did not deny the defendant a fair trial.

People v. Favors, supra, 192 Colo. at 140, 556 P.2d at 75. See People v. Mullins, supra; see also People v. Bartowsheski, supra.

In People v. Gordon, 765 P.2d 633 (Colo.App.1988), the defendant was charged with second degree murder and a crime of violence. The trial court instructed the jury on second degree murder, heat of passion manslaughter, and criminally negligent homicide, but refused to instruct on reckless manslaughter. A division of this court reversed the conviction and ordered a new trial, concluding the jury should have been given the choice between second degree murder and reckless manslaughter.

The division in Gordon rejected the People’s argument that the court’s failure to instruct was harmless error and discussed the interplay among Shaw, Favors, and Mullins:

The [People’s] argument rests on the proposition that, because the jury rejected both of the lesser offenses on which it was instructed, it would undoubtedly have rejected the third also, had it been given that opportunity. This would be an apt analysis in a case in which the jury has convicted a defendant of an offense higher than an included offense on which there was an instruction, and there is a still lesser included offense on which there was no instruction. In such a case, the selection by the jury of the highest available grade of the offense constitutes a rejection of the next lower included offense and of all lesser offenses included within the latter.
In both Favors, supra, and Mullins, supra, for example, the defendants were convicted of first-degree murder and the juries were also instructed on second-degree murder. Thus, the juries’ selection of first-degree murder constituted a rejection of second-degree murder, carrying an implicit rejection of all offenses included in second-degree murder. In Favors, therefore, it was not prejudicial error to fail to instruct on criminally negligent homicide.
The heart of the Favors rule is in the jury’s rejection of a lesser included offense in which is included the offense on which there was no instruction.

People v. Gordon, supra, 765 P.2d at 635 (emphasis added; citations omitted).

The case before us presents the very circumstance that the panel in Gordon considered to be harmless error: the jury here convicted defendant of an offense (second degree murder) higher than an included offense for which there was an instruction (reckless manslaughter), and there was still a lesser included offense on which there was no instruction (criminally negligent homicide). Under the Gordon analysis, which reconciles Shaw, Mullins, and Favors, the selection by the jury of the highest available grade of the offense (second degree murder) constituted its rejection of the next lower included offense (reckless manslaughter) and of all lesser offenses included within the latter (here, criminally negligent homicide).

Stated differently, the jury here necessarily found that the People had proved beyond a reasonable doubt that defendant possessed the mental state required for second degree murder, which necessarily subsumed the mental state required for criminally negligent homicide.

We therefore conclude the trial court’s failure to instruct the jury on criminally negligent homicide, even if erroneous, was harmless as a matter of law. See People v. Favors, supra; People v. Mullins, supra; People v. Gordon, supra.

V.

Defendant next contends the trial court erred in denying his motions to dismiss and for a mistrial based on the People’s opening and closing statements. We disagree.

A.

A prosecutor’s opening statement is limited to the evidence that will be adduced at trial. People v. Hernandez, 829 P.2d 394 (Colo.App.1991). Nevertheless, remarks later proven unsupported by the evidence generally do not require reversal unless there is a showing of bad faith and manifest prejudice. People v. Melanson, 937 P.2d 826 (Colo.App.1996).

Here, the prosecutor stated during opening statements that defendant had told his wife, “I killed someone. Grabbed her hair back and karate chopped her in the neck.” The prosecutor also said defendant had told his wife that he had “buried the body and that he took spray paint and sprayed it on the body everywhere that he had touched the body to get rid of his fingerprints.”

When the prosecution failed to present proof of either of these alleged facts during its case-in-chief, defendant moved for dismissal. The People conceded that defendant had never used the words “karate chop” and that they had failed to present evidence concerning the use of spray paint. Nevertheless, while the People’s opening statements did contain two statements that were not proven at trial, which we do not condone, there was no showing of bad faith or manifest prejudice.

Accordingly, the trial court did not abuse its discretion in denying defendant’s motion to dismiss.

B.

Defendant’s motion for mistrial was based on the fact that the People referred to statements defendant made to his wife while the police were present. The defense contended that the trial court’s suppression order precluded this evidence.

A mistrial is a drastic remedy and is warranted only when the prejudice to the accused is so substantial that its effect on the jury cannot be remedied by other means. People v. Salazar, 920 P.2d 893 (Colo.App.1996). Absent an abuse of discretion, a trial court’s denial of a motion for mistrial will not be disturbed on appeal. People v. Scott, 10 P.3d 686 (Colo.App.2000).

Here, the trial court determined that its suppression order pertained only to statements that defendant had made to the police, and did not include defendant’s statements to his wife. Thus, we perceive no abuse of discretion by the court in denying the motion for a mistrial.

C.

We also reject defendant’s contention that the trial court abused its discretion in permitting the prosecutor to argue evidence during her closing statement that was not admitted at trial.

A prosecutor is entitled to comment on evidence admitted at trial and to argue all inferences that can be reasonably and fairly drawn from such evidence. People v. Rodriguez, 794 P.2d 965 (Colo.1990).

During closing arguments, the prosecutor stated that defendant had told his wife that “the ghosts are going to get me like I got her.” Defendant objected on the ground that this statement was never introduced at trial, but the record reflects that this evidence was in fact elicited during the cross-examination of the wife. Accordingly, the prosecutor did not err in making this statement during the closing arguments.

VI.

Finally, defendant contends the trial court abused its discretion in admitting a photograph depicting the victim’s decomposed body. We disagree.

Evidence is relevant when it tends to make the existence of any fact that is of relevance to the determination of an action more probable or less probable than it would be without the evidence. CEE 401. Irrelevant evidence is inadmissible. CRE 402. Relevant evidence may also be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. CRE 403.

The Colorado Rules of Evidence strongly favor the admission of evidence, and the trial court has broad discretion in determining the admissibility of evidence. See CRE 403; People v. District Court, 869 P.2d 1281 (Colo.1994). When the defendant objects to photographic evidence on the basis that it is unfairly prejudicial, we review the trial court’s decision only for abuse of discretion. People v. Scarlett, 985 P.2d 36 (Colo.App.1998).

Photographs may be used to portray relevant matters, including the scene of the crime, the identification of the victim, the appearance and condition of the deceased, and the location, nature, and extent of the wounds or injuries. See People v. Anderson, 954 P.2d 627 (Colo.App.1997).

Here, over defendant’s objection, the trial court admitted one photograph that showed the victim’s body after it had been exhumed. Although the photograph was grisly, the trial court reasoned that the People should be allowed to present evidence explaining why it was difficult to determine the cause of death and why the coroner was unable to make conclusive findings. The court also advised the jurors that they were not required to look at the photograph. While we conclude the photograph had only marginal relevance, we cannot say the trial court abused its discretion in admitting it. See People v. Anderson, supra.

Judgment affirmed.

Judge ROY concurs.

Judge TAUBMAN dissents.

Judge TAUBMAN

dissenting.

This case presents the issue of the appropriateness of instructing the jury on criminally negligent homicide in circumstances not previously addressed by any Colorado appellate court. I disagree, on both factual and legal grounds, with Part IV of the majority’s opinion that failure to instruct the jury on the lesser included offense of criminally negligent homicide was not error. Instead, I conclude that because the mens rea for criminally negligent homicide concerns the failure to perceive a risk that harm could occur, it is fundamentally different from the mens reas for second degree murder and reckless manslaughter, and the jury should have been instructed on it as well. Therefore, I respectfully dissent.

The facts of this case are gruesome and tend to implicate the defendant, especially the events that occurred after the victim was killed. The majority opinion details many of those facts.

On appeal, defendant concedes that his actions caused the victim’s death, but he argues that his actions were either justified as self-defense or that he is culpable only of criminally negligent homicide. Relying on testimony of the pathologist, who could not specify the cause of the victim’s death, defendant contends that the victim died accidentally after he hit her in the neck or chest area. He argues that the trial court therefore erred by failing to instruct the jury on criminally negligent homicide, an offense that was consistent with his theory of the case, when there was a rational basis to support this instruction.

A court must give a lesser included offense instruction whenever there is a rational basis for the jury to acquit the defendant of the greater offense, but convict him or her of the lesser offense. People v. Halstead, 881 P.2d 401 (Colo.App.1994). In a homicide case, when there is some evidence, however slight, establishing the lesser included offense, it is reversible error to refuse to instruct the jury on that lesser offense. People v. Shaw, 646 P.2d 375 (Colo.1982).

Here, defendant was entitled to an instruction on criminally negligent homicide, because he presented evidence upon which a jury rationally could have acquitted him of second degree murder and reckless manslaughter, and still convicted him of criminally negligent homicide. See People v. Halstead, supra.

Specifically, criminally negligent homicide was consistent with his defense that he did not knowingly or consciously disregard a known risk that his actions would cause death, but rather, that he failed to perceive the risk that hitting the victim in the throat or chest area could cause death. Defendant never disputed that he hit the victim in the neck or chest area and that such blow caused her death. Rather, he argued that either her death was accidental because he did not know that she could die from such a blow, or that his actions were justified by the affirmative defense of self-defense.

Further, defendant’s request for an instruction on criminally negligent homicide was not inconsistent with his affirmative defense of self-defense. See People v. Castro, 10 P.3d 700 (Colo.App.2000)(jury was properly instructed on both self-defense and criminally negligent homicide, because the self-defense instruction applied only to second degree murder and not to criminally negligent homicide). Here, the self-defense instruction applied to second degree murder, but did not apply to reckless manslaughter and would not have applied to criminally negligent homicide.

On the night of the offense, defendant and the victim attended a party. The prosecution presented conflicting testimony about the events leading up to the victim’s death, and defendant, through the testimony of his ex-wife, presented different accounts as well.

At trial, defendant’s request for an instruction on criminally negligent homicide was supported by the testimony of his ex-wife and the testimony of the forensic pathologist who performed the autopsy of the victim.

Thus, defendant’s ex-wife testified that defendant repeatedly told her that the victim’s death was an accident. According to her, defendant gave four versions of the accident, at least three of which were consistent with criminally negligent homicide. Three or perhaps four of the versions involved defendant hitting the victim in the neck or chest area at the party or in a park. The ex-wife further testified that defendant said he did not realize that he had killed the victim, but rather, thought that she had passed out after he had hit her. In my view, the conflicts in the four versions as to where the victim died are not relevant to the question whether a rational basis exists upon which a jury could acquit defendant of the greater crimes and convict him of criminally negligent homicide. Regardless of where the victim was killed, the jury may have believed that defendant’s actions constituted a failure to perceive a risk that injury could occur.

Additionally, the forensic pathologist testified that the victim could have died from a blow to her neck or chest area. He testified that humans have a reflex action, and when hit in the neck or chest area, this reflex action may cause a person to drop dead immediately. He explained that people have bundles of nerves in their necks that control breathing, heartbeat, and the majority of body functions. Trauma to those nerves can cause death quickly. The forensic pathologist further explained that there are multiple causes for this reflex action, including a blow to the neck or chest area with a fist or an open palm. Although he initially testified that the blow must have been hard to be fatal, on cross-examination, the pathologist conceded that such a blow did not have to be hard for it to be fatal.

It is important to note that the forensic pathologist could not determine the exact cause of death; rather, he was only able to rule out various causes of death. He testified that the victim had not been shot or stabbed, had not suffered a stroke, had not broken any bones, and had not been hit in the head.

The forensic pathologist also testified that he had performed over 4,000 autopsies, nearly 1,000 of them forensic, and had never seen a case where blunt trauma to the neck or chest caused death.

Because death occurs so rarely from this type of trauma, the pathologist’s testimony is entirely consistent with defendant’s theory of the case that the victim died as a result of an accident. Indeed, during closing argument the prosecutor asserted, based on the pathologist’s testimony, that the most likely cause of death of the victim was a blow to the neck or chest area.

The forensic pathologist’s testimony and the prosecution’s closing argument thus support giving a jury instruction on criminally negligent homicide, because they demonstrate that defendant could easily have failed to perceive that hitting the victim in the neck or chest area, even intentionally, would have caused her death.

Further, the trial court’s failure to instruct the jury on criminally negligent homicide was particularly prejudicial here, because the prosecution did not have overwhelming evidence supporting a conviction for second degree murder. There was no direct or physical evidence linking defendant to the crime, and the People’s entire case was based on circumstantial evidence of events before and after the crime. Moreover, twice, the jury informed the court that it was “hopelessly deadlocked” and asked for instructions on how to proceed. Both times, the court responded that the jury must continue deliberations. The verdict was eventually returned after 5:00 p.m. on a Friday.

In these circumstances, and notwithstanding the extent of testimony tending to incriminate defendant, the testimony from the pathologist and defendant’s ex-wife, if believed by the jury, was sufficient to present a rational basis for acquitting defendant of second degree murder and reckless manslaughter and convicting him of criminally negligent homicide. In my view, defendant’s degree of culpability was a jury question.

Accordingly, I must consider whether the court’s failure to instruct the jurors on criminally negligent homicide was harmless error.

Harmless error is any error that does not affect a substantial right of a party. Crim. P. 52(a). Thus, when an error affects a substantial right of a party, it cannot be deemed harmless. People v. Pratt, 759 P.2d 676 (Colo.1988).

The majority opinion concludes that either there was no error or that any error was harmless. I conclude, however, that the court erred and that such error was not harmless.

In concluding that the failure to instruct on criminally negligent homicide was not error, the majority analyzes two lines of cases. I disagree with its analysis under the unique circumstances presented here.

The majority asserts that, under one line of cases, a trial court’s failure to instruct a jury on a lesser included offense is reversible error. See People v. Shaw, supra. Under the other line, by convicting a defendant of the greater offense, and rejecting a lesser included offense, the jury impliedly rejects all other lower lesser included offenses as well. Under that line, the failure to give such an instruction is harmless error. See People v. Favors, 192 Colo. 136, 556 P.2d 72 (1976); People v. Mullins, 188 Colo. 23, 532 P.2d 733 (1975).

According to the majority, People v. Gordon, 765 P.2d 633 (Colo.App.1988), reconciles these divergent lines of cases. In Gordon, a division of this court held that, when a jury convicts a defendant of an offense higher than an included offense on which there was an instruction, and there remains an even lesser included offense on which there was no instruction, the error is harmless because the selection of the higher offense constitutes a rejection of all lesser included offenses.

Applying Gordon to the facts presented here, the majority concludes that the jury’s conviction of defendant for the highest offense, second degree murder, and rejection of the lesser included offense of reckless manslaughter, necessarily constituted a rejection of the next lower included offense of criminally negligent homicide, even though the jury was not instructed as to that offense.

However, Gordon is distinguishable because the division there did not compare the mens reas for second degree murder and reckless manslaughter, on the one hand, and criminally negligent homicide, on the other. No Colorado appellate court opinion has examined the need for a lesser included offense instruction based upon the different mens reas involved, but, in my view, that distinction is significant.

The mens reas for the three offenses raised in this situation vary considerably, and given all three options, a jury might well convict defendant of criminally negligent homicide and acquit him of the two greater offenses.

Second degree murder occurs when a defendant “knowingly causes the death of a person.” Section 18-3-103(1), C.R.S.2000. A person acts knowingly with respect to the result of his or her conduct when he or she is aware that the conduct is “practically certain to cause the result.” Section 18-1-501(6), C.R.S.2000.

A defendant commits reckless manslaughter by acting in a manner that involves a substantial and unjustifiable risk of death to the victim, and although the defendant is aware of the risk, he or she nevertheless chooses to engage in the action that causes death to the victim. See Moore v. People, 925 P.2d 264 (Colo.1996).

Both second degree murder and reckless manslaughter thus require that a defendant be aware of the risk associated with his or her actions. However, criminally negligent homicide does not require such awareness; rather, it occurs when a defendant fails to perceive a substantial and unjustifiable risk that an unintentional death will occur as a result. See People v. Castro, supra. Thus, the distinction between the mens reas of the offenses is critical here.

The circumstances presented in both People v. Favors, supra, and People v. Mullins, supra, were different from those here, in that there, each defendant was charged with first degree murder and the jury was instructed only on first and second degree murder. Mullins did not discuss the impact of the mens reas involved, nor did it address a court’s failure to instruct a jury on criminally negligent homicide.

Although the defendant in Favors argued that the trial court erred in not instructing the jury on criminally negligent homicide as a lesser included offense, the supreme court concluded that the defendant’s tendered instruction incorrectly stated the law and that the defendant had not demonstrated prejudice. Therefore, the Favors court did not address the mens rea for criminally negligent homicide, the issue presented here.

Relying upon Gordon, the majority concludes that, because the jury here convicted defendant of second degree murder rather than reckless manslaughter, it would not have acquitted him of second degree murder and convicted him of criminally negligent homicide.

However, as shown above, Gordon is distinguishable, and regardless of the instructions given on greater offenses, defendant here was entitled to an instruction on criminally negligent homicide because there was evidence that could have lead a reasonable jury to convict him of that offense and acquit him on the greater offenses. See People v. Shaw, supra; People v. Palumbo, 192 Colo. 7, 555 P.2d 521 (1976)(where the defendant hit the victim, causing him to fall and fatally strike his head, the trial court did not err in instructing the jury on criminally negligent homicide).

In addition, the trial court’s rationale for rejecting defendant’s request for an instruction on criminally negligent homicide was flawed. The court found that because defendant’s actions were affirmative, and not negligent, criminally negligent homicide did not apply. However, the trial court was mistaken because an affirmative act is not inconsistent with criminally negligent homicide, which involves the failure to perceive a risk. Thus, an affirmative action on the part of defendant would not preclude the court from instructing the jury on criminally negligent homicide. In fact, defendant’s affirmative act of striking the victim here is consistent with the mens rea for criminally negligent homicide, because his contention is that he failed to perceive the risk that the victim might die from such affirmative act.

Thus, I cannot conclude that the trial court’s failure to instruct the jurors on criminally negligent homicide was harmless because defendant’s substantial rights were affected. Had the jury been instructed on criminally negligent homicide, it may well have convicted defendant of that charge and acquitted him of second degree murder and reckless manslaughter. Accordingly, I would reverse defendant’s conviction and remand for a new trial.

In addition, I agree with the majority’s resolution of Parts I and II. Because I disagree with Part IV, I would not reach the issues addressed in Parts III, V, and VI of the majority’s opinion, which would be unlikely to recur on retrial.'