source: Caselaw Access Project

author: Justice KOURLIS Justice HOBBS,

license: Public Domain

text:
    Jeron GRANT, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
    No. 008C799.
    Supreme Court of Colorado, En Banc.
    June 3, 2002.
    Rehearing Denied July 1, 2002.

      David S. Kaplan, Colorado State Public Defender, Cynthia Camp, Deputy State Public Defender, Denver, Colorado, Attorneys for Petitioner.
    Ken Salazar, Attorney General, Katherine A. Hansen, Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, Colorado, Attorneys for Respondent.

       Justice HOBBS, Justice MARTINEZ and Justice BENDER would grant the Petition.

   Justice KOURLIS

delivered the Opinion of the Court.

We granted certiorari in People v. Grant, 30 P.3d 667 (Colo.App.2000), to interpret the waiver provision of section 19-2-511, 6 C.R.S. (2001) ("juvenile statements statute"). Seventeen-year-old Jeron Grant spoke with police about a double homicide while his parents waited in a nearby room. Under the statute, such interview is permissible only when the juvenile and his parents expressly waive in writing the statutory requirement of parental presence. Grant's parent signed a waiver, but Grant did not. The statutory phrase "[this express waiver shall be in writing" in subsection 19-2-511(5) does not direct whether the juvenile must sign such waiver, and we therefore find it ambiguous. After resorting to the tools of statutory construction, we conclude that the legislature never intended written unsigned waivers to be conclusively ineffective. In this case, where the waiver was in writing, bore the signature of a parent, was obtained after full advisement, and was supported by ample evidence that the juvenile consented, we determine that the statutory mandate was satisfied. We therefore affirm the judgment of the court of appeals.

I. Facts

Police arrested Jeron Grant in connection with the murder of two teenage boys. Because Grant was a juvenile, the officers awaited the arrival of his parents at the police station before interviewing . him. When Grant's mother and stepfather arrived, the officers explained the reasons for Grant's arrest and requested permission to question him about the murders. They advised Grant and his parents of the juvenile's Miranda rights. On a printed "Fact Sheet," the officers filled in relevant information, pointed out the Miranda rights that were printed at the bottom, and had both Grant and his parents sign the form after they indicated their understanding.

The officers then began interviewing Grant who denied committing the murders and instead blamed the crime on an individual named "Quick." One Officer, Detective Crouch, told Grant he did not believe the story and asked Grant why he was lying. Shortly thereafter, Grant asked to speak with the officer alone. Crouch asked Grant's parents for their consent, which they gave verbally, but not in writing. The parents left the interview room and waited across the hall.

Crouch resumed the interview with Grant; however, the juvenile continued to deny his involvement. He accepted Crouch's offer to take a polygraph test. Crouch and Grant then moved into the polygraph room while Grant's parents moved into an adjoining room where they could watch. Before the polygraph started, Crouch told Grant, "You don't really want to waste my time with this [the polygraph], do you? You know I know the truth. Why don't you come clean?" At this point Grant broke down in tears and told Crouch that he was afraid of going to jail.

Crouch asked Grant if he was ready to relate what really happened, and Grant responded in the affirmative. Crouch told Grant that if he was responsible for the boys' deaths, it would be "extremely tough on [Grant] to live with." At that point, Grant admitted his previous version of events was "a lie." At Crouch's request, Grant wrote out a statement and signed it. The statement implicated Grant in the murders. During these events, Grant's parents remained in the adjoining room where they could see, but not hear. Crouch took Grant's written statement to the parents who signed it without reading its contents. The officers then led Grant back to the initial interview room where his parents joined him; the officers later transferred Grant to Zebulon Pike Juvenile Detention Center.

'At trial, the judge suppressed this statement as rendered in violation of the juvenile statements statute, see § 19-2-511, because it was taken outside the presence of Grant's parents and absent a written waiver. That decision is not at issue in this proceeding.

After the officers took Grant to the detention center, Crouch learned of changes to the juvenile statements statute that required a written waiver for interviews conducted outside the presence of a juvenile's parents. He decided to reinterview Grant, this time in compliance with the statute. Crouch had his office prepare a written waiver form, and he made arrangements for Grant and his parents to return to the station. He did not tell them the reasons for this second interview.

When Crouch arrived at the center to pick up Grant for the second interview, Grant showed the detective the business card of a public defender and told him, "I'm not supposed to talk to anyone until tomorrow." Crouch asked whether the public defender represented him; Grant responded that he did not know, but that he had "signed some-

48 PACIFIC REPORTER, 3d SERIES

546 Colo.

thing.” Crouch told Grant to “go ahead and come with us down to the [police station],” and that, “his folks would be there.” Grant complied and allegedly told the officers during the drive that he would consent to the second interview, but only if his parents were not present.

When the parties - arrived at the police station, Grant and his parents met alone in the interview room for several minutes to discuss “a family matter.” Crouch then entered and requested permission to conduct the second interview.

When Crouch received the parents’ verbal consent, he provided them with a second “Fact Sheet” containing the written Miranda warnings. He again explained those rights and had all three of them initial the appropriate space on the form to signify their understanding. Crouch then presented a form entitled “Juvenile Interview Waiver.” He asked Grant’s mother to read it, and if she agreed, to sign it. She read and signed the waiver. Grant’s stepfather initialed the form. Grant looked at the form, but was not asked to, nor did he, sign it. There was, in fact, no space on the form for his signature. At that time, however, he verbally agreed to an interview conducted outside his parents’ presence.

Crouch’s second interview with Grant lasted a few hours. At the end, Grant wrote out a statement that was substantially similar to his earlier statement but contained slightly more detail. The admissibility of this statement is at issue here.

In a written order, the trial judge denied Grant’s motion to suppress the second statement finding that it did not run afoul of the Sixth Amendment. In a motion to reconsider, defense counsel argued that the second statement should be suppressed based solely on the fact that Grant did not sign the waiver form and that without his signature, the document was invalid under the statute. The trial court rejected this argument finding that the waiver complied with the intent of

2. Grant had signed an "Application for Court

Appointed Counsel.”

3. The defense filed one pretrial motion to suppress both statements. After a hearing, the trial

the statute and that such waiver need not be signed by both the juvenile and the parents. A jury acquitted Grant of first-degree murder, but convicted him of accessory to murder and accessory to manslaughter.

[1] The court of appeals affirmed. The court noted that the statute requires all waivers to be “in writing,” but that it does not specify that both the parents and the juvenile must affix their signatures to such writing. The court went on to reason that a “requirement for a writing is separate and distinct from a signature requirement” in Colorado’s statutory law. Grant, 30 P.3d at 673 (citing § 2^4-401(17), 1 C.R.S. (1999) (“ ‘Written’ or ‘in writing’ includes any representation of words, letters, symbols, or figures; but this provision does not affect any law relating to signatures.”)). After listing several statutes that specifically require signatures as part of a writing, the court concluded that the juvenile statements statute contained no such requirement. Ultimately, so long as the written waiver was “attributable to the person against whom it is to be enforced,” the court ruled that such waiver was valid and, therefore, Grant’s second statement was properly admitted. Grant, 30 P.3d at 673. We review a lower court’s statutory interpretation de novo. Fogg v. Macaluso, 892 P.2d 271, 273 (Colo.1995).

II. Statutory Interpretation

[2-7] This court follows a well-worn path in interpreting our state’s statutes. “Our primary task in construing a statute is to give effect to the intent of the General Assembly. ... To discern that intent, a court should look first to the plain language of the statute.” Farmers Group, Inc. v. Williams, 805 P.2d 419, 422 (Colo.1991). When we determine that statutory language is ambiguous, we may look to rules of statutory construction and to the legislative history as indications of the legislature’s intent. Rodriguez v. Schutt, 914 P.2d 921, 925 (Colo.1996). We give effect both to the spirit and to the

judge granted the motion in part and denied in

part, suppressing the first statement, but refusing

to suppress the second one.

intent of the legislators in enacting the statute. Hall v. Walter, 969 P.2d 224, 229 (Colo.1998). "Although we must give effect to the statute's plain and ordinary meaning, the General Assembly's intent and purpose must prevail over a literalist interpretation that leads to an absurd result." Lagae v. Lackner, 996 P.2d 1281, 1284 (Colo.2000). Thus, we try to ascertain the intent of the general assembly in promulgating the juvenile statements statute and the waiver provision. When we deem the statute itself to be ambiguous, we look to statutory interpretation tools to aid us in the analysis.

Here, the statute requires that a juvenile be accompanied by a parent when making statements to the police, unless the juvenile and parent expressly waive that right. Specifically, the statute reads in relevant part:

(1) No statements or admissions of a juvenile made as a result of the custodial interrogation ... shall be admissible in. evidence against such juvenile unless a parent . was present at such interrogation....
(5) [The juvenile and his or her parent may expressly waive the requirement.... This express waiver shall be in awwriting and shall be obtained only after full advisement ... of the juvenile's rights prior to the taking of the custodial statement.... 69

§ 19-2-511, 6 C.R.S. (2001) (emphasis added). The question before this court is whether the written waiver signed by Grant's mother and initialed by his stepfather, but not signed by Grant himself, satisfies this statutory requirement. We hold that it does.

III. The Statutory Language Is Ambiguous

Of his own accord, but with the undisputed consent of his parents, Grant decided to reveal his involvement in the murders outside his parents' earshot. In 1996 the legislature amended the Children's Code to provide for precisely this situation; it added a waiver provision. See ch. 283, see. 1, § 19-2-511(5) 1996 Colo. Sess. Laws 1595, 1635-86. The new provision directs that "[this express waiver shall be in writing." § 19-2-511(5). Resorting to the plain meaning of the statutory language does not answer whether the general assembly intended "in writing" to require a signature to be effective.

On one hand, the general assembly frequently uses "in writing" in Colorado's statutes in a way that does not assume it encompasses signatures. For example, in the field of music copyrights, the legislature chose the following language: "A contract for the payment of the royalties by a proprietor to a copyright owner or society shall: (a) Be in writing; (b) Be signed by the parties." § 6-13-108(4), 2 C.R.S. (2001) (emphasis added). A statute governing forcible entry and de-tainer directs, "The demand ... shall be made in writing, specifying the grounds of the demandant's right to the possession of such premises, ... and shall be signed by the person claiming such possession." § 13-40-106, 5 CRS. (2001) (emphasis added). These are two of a multitude of examples whereby the legislature has treated "in writing" as separate and distinct from a signature requirement. Indeed, interpreting the phrase "in writing" to assume a signed doeument renders superfluous the separate "signature" language used in the above examples, an interpretation we are to avoid. See People v. Swain, 959 P.2d 426, 482 (Colo. 1998) ("[Interpretations that render statutory provisions superfluous should be avoided.").

On the other hand, Colorado statutes often contain the phrase "in writing" by itself, without accompanying "signature" language. In some of those instances, the legislature arguably intended the writings be signed. For example, section 4-2.5-309(5), 2 C.R.S. (2001), provides, "The interest of a lessor of fixtures... has priority ... if: ... (c) The encumbrancer or owner has consented in writing to the lease. . .." Surely, in this case, the "written" consent should bear the signature of the owner. Similarly, section 6-2-1118), 2 C.R.S. (2001), directs, "If any person, ... in writing and under oath, submits to the attorney general a statement setting forth facts sufficient to constitute a prima facie case of violation of .., this article...." Again, it is difficult to conceive that the legislature would require a "writing" under oath, but be indifferent as to whether that writing was signed.

At other times, however, a signature requirement is not necessarily implicit in instances when "in writing" appears alone. For example, in a statute governing unlawful telemarketing, the general assembly mandated, "The availability and terms of the return and refund privilege shall be disclosed to the consumer orally by telephone and in writing with any advertising or promotional material...." § 6-1-304(2), 2 C.R.S. (2001) (emphasis added). Another example appears in the UCC, section 4-2-609(1), 2 C.R.S. (2001): "When reasonable grounds for insecurity arise with respect to the performance of either party, the other may in writing demand adequate assurance of due performance...." (Emphasis added.) See also § 8-4-105(4), 3 C.R.S. (2001) ("Every employer shall at least monthly ... furnish to each employee an itemized pay statement in writing showing the following ....") (in this and following quotations, emphases have been added); § 8-4-120(1), 8 C.R.S. (2001) ("Ascertain and disclose in writing to each migratory laborer, in a language in which the migratory laborer is fluent...."); § 17-22.5-408(6), 6 C.R.S. (2001) ("[Tihe state board of parole shall ... modify the conditions of parole if cireumstances then shown to exist require such modifications, which cireumstances shall be set forth in writing, or revoke the parole and order the return of the offender to a place of confinement ...."); § 27-10.3-104(1)(b), 8 C.R.S. (2001) ("At the time of the assessment by the mental health agency, if residential services are denied, the mental health agency shall advise the family, both orally and in writing, of the appeal process available to them."). None of these examples would lead one necessarily to conclude that the writing must be signed.

The legislature's varied use of the phrase "in writing" does not unequivocally answer whether a signature must accompany such writing. Where multiple interpretations are reasonable, we may find a statute's language is ambiguous. State v. Nieto, 998 P.2d 498, 502 (Colo.2000). Accordingly, we conclude that "in writing" as used in this statute is ambiguous.

IV. Statutory Construction

Legislative history is just one of several tools available to aid our resolution of ambiguous statutory terms. $ 24-203, 1 CRS. (2001). We may also consider the "objective sought to be attained," and "[the consequences of a particular construction." Id.

The hearings in the legislative committees prior to the passage of the waiver provision at issue reveal that the provision was but a small part of a substantial overhaul of the Children's Code. Originally, the proposed amendment contained only the language, "Notwithstanding the provisions of subsection (1) of this section, the juvenile and his or her parent, guardian, or legal or physical custodian may expressly waive the requirement." Hearings on H.B. 96-1005 Before the House Committee on the Judiciary, 60th General Assembly, Second Regular Session (Jan. 25, 1996). With almost no debate, the provision passed the House Judiciary Committee in that form. Id.

In the Senate's judiciary committee, the provision received somewhat more attention. Hearings on H.B. 96-1005 Before the Senate Committee on the Judiciary, 60th General Assembly, Second Regular Session (Apr. 19, 1996). One committee member, advocating for the proposed amendment, noted that juveniles are frequently uncomfortable talking about their misdeeds, especially sexual crimes, in front of their parents and that the waiver was necessary to afford them the opportunity to cooperate with police, when the juvenile, together with his or her parents, decided to do so. Id.

A representative from the Colorado Criminal Defense Bar, testifying at the hearing, convinced the Senate's committee that, as it stood, the waiver provision appeared to allow police to interrogate a juvenile first, and then later garner the parent's consent. The committee accepted the Defense Bar's recommendation that the law require a written waiver be in place prior to the custodial interrogation. Id.

This testimony suggests the "written waiver" language was an attempt to allay fears that police might undermine the waiver provision's purpose by securing the waiver only after they had already interrogated the juvenile. By ensuring the consultation with the parent took place prior to any interrogation, and with the parties' written consent to prove it, the legislature sought to safeguard juveniles from an uninformed, unprotected interrogation, while still affording them the opportunity to cooperate with police without exposing the juvenile's parents to the details of the crimes. The legislative history does not reveal any specific intent on behalf of the lawmakers to require, or not to require, a signature as part of the written waiver.

We have previously observed that the general assembly added this statute to the Children's Code to afford juveniles some shelter from the rigors of custodial interrogation. "[The purpose in enacting the [Juvenile statements] statute is to ensure that a juvenile during police interrogation is advised and counseled concerning his or her Fifth Amendment right against self-incrimination and Sixth Amendment right to counsel by someone whose interests are consistent with those of the child." People v. S.M.D., 864 P.2d 1103, 1106 (Colo.1994); see also People v. Raibon, 848 P.2d 46, 50 (Colo.App.1992) ("[Llegislative purpose [of subsection (1)] is to provide to the minor an opportunity to consult with a parent or guardian before deciding whether to assert or to waive his or her Fifth Amendment rights."). The erux of the statute, then, is that the juvenile have access to an adult who will help safeguard the child's constitutional rights in a custodial interrogation context.

Based upon the cumulative intent of the statute, as reflected in its language and the legislative history, we conclude that the legislature never intended that waivers not signed by both the parent and the juvenile should be found invalid per se, thereby rendering subsequent statements inadmissible. Rather, the general assembly intended the writing to serve as evidence, physical proof that law enforcement actually afforded the juvenile an opportunity to consult with an adult before the police undertook the juvenile's interrogation. We believe the general assembly also sought to ensure that the juvenile and parent were fully aware of the scope and content of the rights they were waiving and to impress upon them the importance of those rights.

The court of appeals ruled that the written document in this case satisfied the statute because it was "attributable" to the juvenile (and his parents, assumedly). We agree with this rationale. There exist a host of circumstances, in addition to or separate from signatures, that bear on the authenticity of a written document. We hold, therefore, that although it would clearly be preferable, an express, written waiver need not necessarily be signed in order to satisfy subsection (5) of section 19-2-511 so long as the cireum-stances surrounding that waiver clearly demonstrate that the child and parent agreed to waive their statutory rights.

v. Appliéation

We turn now to the cireum-stances that may bear on the reliability of a waiver under section 19-2-511(5). Certainly, signatures by both parent and juvenile would constitute strong evidence of the written waiver's credibility. Uncontroverted testimony that the juvenile verbally consented to the waiver, or audio or videotape with the same content, along with the signature of a parent, also would support the waiver.

However, a trial court may also examine the cireumstances that purportedly gave rise to the waiver: for example, where, when, and at what stage in the proceedings the writing appeared; whether the juvenile and parent agreed to the writing simultaneously or separately; whether their consent was garnered in person; whether they were offered ample opportunity to consult; whether they did consult, privately or with the police present; whether the parties were aware that the written waiver was a statutory requirement; whether there existed any

evidence that signatures, if present, were coerced; and whether any other evidence supports or undermines the validity of the waiver. This is clearly not an exhaustive list, as each case will have its own particularities bearing on the credibility of the waiver at issue. The trial court should examine all relevant cireumstances bearing on the reliability of the written waiver and uphold it when appropriately supported.

We are convinced that the written waiver in this case adequately recorded the intent of Grant and his parents to relinquish their statutory right to parental presence. Here, Grant's mother and stepfather were present before the interrogation began. They had ample opportunity to consult with him, and they did so. Detective Crouch explained the Miranda rights to Grant and his parents, twice, in fact. Both Grant and his parents signed a Miranda waiver, The statement Grant made was voluntary and in full compliance with his constitutional rights. The juvenile statements statute operated precisely as designed. We acknowledge that police failed to inform Grant or his parents of the statutory written waiver provision that necessitated the second interview. However, we also consider that there is no factual question whatsoever about whether Grant sought to waive this statutory right, or whether he disputed the contents of the waiver in any respect. Indeed, he insisted upon the interview outside the presence of his parents.

VI. - Conclusion

In sum, we decline to adopt a per se signature requirement. Written waivers under section 19-2-511(5) need not necessarily be signed by both the parent(s) and the juvenile so long as the cireumstances surrounding the waiver support its reliability. We affirm the judgment of the court of appeals.

Justice HOBBS dissents, and Justice MARTINEZ and Justice BENDER join in the dissent.

Justice HOBBS,

dissenting:

I respectfully dissent. The majority acknowledges that section 19-2-511(5) "requires that a juvenile be accompanied by a parent when making statements to the police, unless the juvenile and parent expressly waive that right." Maj. op. at 547. (emphasis added). I agree. The majority also acknowledges that the statute requires a written waiver to this effect. Maj. op. at 549. I agree. The majority then holds that the written waiver the parents, but not the juvenile, signed in this case effectively waived the juvenile's right under the statute to have a parent present during the police interrogation. Maj. op. at 550. I disagree.

The statute does not give effect to a waiver executed by a parent but not the juvenile. The statutory right to have a parent present during custodial interrogation is the juvenile's right to waive, and this may not be waived solely by his parents on his behalf. See § 19-2-511(5), 6 C.R.S. (2001). Jeron Grant did not write the waiver, sign, or initial it. There are no indications on the face of this document that Jeron Grant adopted the waiver form as his own. Therefore, there is no juvenile express waiver in writing in this case.

L.

A. The Written Waiver Here . Is Only The Parent's

The waiver in this case was not the juvenile's, regardless of whether or not he signed it. The written instrument the majority assumes to be the juvenile's waiver is plainly only. a written parental waiver, not-as the majority acknowledges to be the law-a written juvenile and parental waiver. The instrument did not include a clear written statement that (1) the right to have a parent present during the interrogation is the juvenile's and (2) having been advised of this right, the juvenile expressly waives it.

The waiver form stated the following: .

JUVENILE INTERVIEW WAIVER
I, KATHY E. HOWELL, his or keeKH parent/guardian/legal or physical custodian may expressly waive the requirement that the parent/guardian/legal or physical custodian be present during interrogation of the juvenile. >
This express waiver shall be in writing and shall be obtained only after full advisement of the juvenile and his or kerKH parent/guardian/legal or physical custodian of the juvenile's rights prior to the taking of the custodial statement by a law enforcement official.
If said requirement is expressly waived, statements or admissions of the juvenile shall not be inadmissible in evidence by reason of the absence of the juvenile's parent/guardian/legal or physical custodian during interrogation.

The waiver form next contained a line requesting the name and date of birth of the juvenile, which was apparently filled in by the police officer. Finally, the form contained a signature line for the "Person Signing the Waiver" and a line requesting the signing person's "Relationship" to the juvenile. Kathy E. Howell signed the form and stated her relationship to the juvenile as "mother."

Nowhere on the document does a space exist for the juvenile to indicate his acceptance or rejection of the waiver. This accords with the entire language and tenor of the document. It contemplates only a written parental waiver. The first line of the waiver form states, "I, KATHY E. HOWELL, his parent /guardian/legal or physical custodian may expressly waive the requirement that the parent/guardian/legal or physical custodian be present during interrogation of the juvenile" (Emphasis added.) The clear and unequivocal purpose of this document was to obtain and record Kathy Howell's written waiver, not her son's.

The writing here does not comply with section 19-2-511(5). Where the statutory language is clear and unambiguous, "there is no need to resort to interpretive rules of statutory construction." Pierson v. Black Canyon Aggregates, Inc., 48 P.8d 1215, 1218 (Colo.2002). "In construing statutory provisions, our obligation is not to make policy decisions but rather to give full effect to the legislative intent." Farmers Ins. Exch. v. Bill Boom Inc., 961 P.2d 465, 469 (Colo.1998). We must ascertain and give effect to the intent of the General Assembly, not second guess its judgment. Id.

Here, the plain language of the statute is clear and unambiguous. A parent's presence , during custodial interrogation of a juvenile is mandatory. Nicholas v. People, 978 P.2d 1213, 1216 (Colo.1999). Statements or admissions of a juvenile obtained in violation of this rule are inadmissible. See § 19-2-511(1), 6 C.R.S. (2001). Section 19-1-511(5) and (6) contain two exceptions to this mandatory requirement: subsection (5) allows a parent and the juvenile to waive the parent's presence in writing, and subsection (6) provides a good faith and reasonable reliance exception when the juvenile makes a deliberate misrepresentation affecting the applicability of mandatory parental presence. Section 19-1-511(5) provides: .

Notwithstanding the provisions of subsection (1) of this section, the juvenile and his or her parent ... may expressly waive the requirement that the parent ... be present during the interrogation of the juvenile. This express waiver shall be in writing and shall be obtained only after full advisement of the juvenile and his or her parent. ... If said requirement is expressly waived, statements or admissions of the juvenile shall not be inadmissible in evidence by reason of the absence of the Juvenile's parent.

Section 19-2-511(6) provides:

Notwithstanding the provisions of subsection (1) of this section, statements or admissions of a juvenile shall not be inadmissible into evidence by reason of the absence of a parent, guardian, or legal or physical custodian, if the juvenile makes any deliberate misrepresentations affecting the applicability or requirements of this section and a law enforcement official, acting in good faith and in reasonable reliance on such deliberate misrepresentation, conducts a custodial interrogation of the juvenile that does not comply with the requirements of subsection (1) of this seetion. '

The section 19-2-511(6) exception is inapplicable to this case, and the plain langitage of section 19-2-511(5) is unambiguous. There must be an "express waiver" of the mandatory parental presence requirement by the "juvenile and his or her parent, guardian, legal or physical custodian," and it "shall be in writing." § 19-2-511, 6 C.R.S. (2001)(em-phasis added). "The use of the term 'shall indicates that the rule is mandatory Nicholas, 978 P.2d at 1216.

The words that the waiver "shall be in writing" are plain and unambiguous: the juvenile and the parent's agreement to waive the juvenile's right to have the parent present during the interrogation must appear on the face of the written instrument. The court, in my view, should give effect to the "in writing" requirement's evident purpose: to protect juveniles who are subjected to police interrogation."

The General Assembly enacted the parental presence rule because children require additional protection and assistance when confronted by police officers who are investigating them for criminal acts. See Nicholas, 973 P.2d at 1218-19; People v. Legler, 969 P.2d 691, 694 (Colo.1998)(stating that the purpose of the parental presence requirement was to provide additional and necessary assurances that the juvenile's Fifth Amendment right against self-inerimination will be afforded to him); People v. Saiz, 620 P.2d 15, 19-20 (Colo.1980); People v. Maes, 194 Colo. 285, 287, 571 P.2d 305, 806 (1977)(holding that "the clear purpose of the Children's Code is to afford a special protection to a juvenile who is in police custody because of alleged criminal acts"). The parental presence rule guards against invalid waivers of important constitutional and statutory rights by minors acting without assistance. Nickolas, 973 P.2d at 1218 ("The plain language of this statutory mandate reflects the General Assembly's recognition that juveniles generally lack the capacity to make important legal decisions alone."); People in the Interest of GL., 631 P.2d 1118, 1120 (Colo.1981)("The purpose of [the] section ... is to provide a child with parental guidance during police interrogation, and to ensure that any waiver of the child's Fifth Amendment rights against self-incrimination and Sixth Amendment right to counsel will be made knowingly and intelligently."); Saiz, 620 P.2d at 19-20.

The written waiver requirement impresses upon the parent and the juvenile (1) the importance of the juvenile's parental presence right, and (2) alerts both parent and juvenile that waiver of this right can have serious consequences. The evident statutory purpose underlying a properly written juvenile and parental waiver is to: (1) solemnize the occasion of the waiver, (2) remind the police that the right belongs to the juvenile, and (3) provide evidentiary proof of the opportunity to review the waiver and the waiver's validity.

The absence of a juvenile's parents during police interrogation is a significant legal event, of importance equal to or greater than other legal events requiring signatures. Seq, eg., People v. Gall, 830 P.3d 145, 158 (Colo.2001)(holding that search warrant forms must be signed or sworn to by the affiant); § 18-1-405(4), 6 C.R.S. (2001)(waiv-er of statutory right to speedy trial and agreement to continuance must be signed by the defendant;}; § 1511-502, 5 CRS. (2001)(a will must be reduced to writing and signed by the testator); § 38-10-108, 10 C.R.S. (2001)(contracts for interest in land must be evidenced by signed memorandum).

In my view, the written waiver must clearly call for the parent's and juvenile's assent to it, and the juvenile as well as the parent must adopt the writing as their own. This would most usually occur by the juvenile and the parent both signing the instrument. However, we need not examine the absence of Jeron Grant's signature here, because the waiver is invalid on its face. The language of the instrument does not contain a clear written statement that (1) the right to have a parent present during the interrogation is the juvenile's and (2) having been advised of this right, the juvenile expressly waives it.

In my view, the majority's discussion of a signature requirement is beside the point. Maj. op. at 547-48. ° The instrument itself fails as an effective written waiver under section 19-2-511(5). The court need not reach the signature issue.

B.

A Totality Of The Circumstances Test Is Inapplicable

The majority analyzes the totality of the cireumstances surrounding the mother's written waiver and holds that the written waiver is the juvenile's waiver as well. Maj. op. at 549-50. I disagree. First, a totality of the cireumstances analysis is inapplicable to this case. Second, the facts demonstrate that the police obtained the parent's written waiver but only the juvenile's oral waiver.

The majority utilizes a totality of the circumstances test without applying that appellation to the test it creates. The majority states, "[A] trial court may also examine the cireumstances that purportedly gave rise to the waiver.... The trial court should examine all relevant cireumstances bearing on the reliability of the written waiver and uphold it when appropriately supported." Maj. op. at 549. The majority lists a number of factors to consider. The majority then concludes that the "written waiver in this case adequately recorded the intent of Grant and his parents to relinquish their statutory right to parental presence." Maj. op. at 550.

In my view, a totality of the circumstances test is inapplicable. In Nicholas, we held that the statute did not create a totality of the circumstances test, rather section 19-2-511 mandated a per se rule of inadmissibility. Nicholas, 978 P.2d at 1219. "In Colorado, through section 19-2-210, the legislature has enacted an explicit statutory rule of evidence that operates as a per se or automatic rule of exclusion in the absence of the procedural safeguards set forth in that section." Id. at 1220 (section 19-2-210 is currently codified at section 19-2-511). We expressly rejected a totality of the circumstances test in substitution for the express statutory language:

The first is an after-the-fact review of the totality of the cireumstances to determine «whether a juvenile's waiver was knowing, intelligent, and voluntary. The second is the adoption of initial safeguards and a rule of exclusion whenever the juvenile has not been afforded the special assistance required. This "per se" approach automatically excludes a waiver based on the absence of certain cireumstances i.e., on the absence of the requisite procedural safeguards. One reason for the adoption of a per se rule is to ensure more consistent application than is possible with a totality of the cireumstances test.

Id. at 1219 (citation omitted).

In 1999, the General Assembly responded to the Nickolas decision in two ways. It added section 19-2-511(6) to address situations, such as the one in Nicholas, where a juvenile deliberately misrepresented his age or some other material fact-which the police then relied on in good faith-to conclude that the mandatory parental presence requirement did not apply to the case. Ch. 258, see. 1, § 19-2-511, 1999 Colo. Sess. Laws 1017.

Significantly, the legislature also amended section 19-2-511(2) to include a totality of the cireumstances test, but-by its express terms-this test applies only when the juvenile makes a knowing, intelligent, and voluntary waiver of rights and the juvenile was emancipated, a runaway from another state of sufficient age and understanding, eighteen years or older at the time of interrogation, or misrepresented his or her age to be over eighteen:

19-2-511 Statements. (@)(a) - Notwithstanding the provisions of subsection (1) of this section, statements or admissions of a juvenile shall-not-be-admissible MAY BE ADMISSIBLE in evidence, by-reason-of NOTWITHSTANDING the absence of a parent, guardian, or legal or physical custodian, if THE COURT FINDS THAT, UNDER THE TOTALITY OF THE CIRCUMSTANCES, THE - JUVENILE MADE A KNOWING, INTELLIGENT, AND - VOLUNTARY - WAIVER - OF RIGHTS AND:
(I) The juvenile is eighteen years of age or older at the time of the interrogation OR THE JUVENILE MISREPRESENTS HIS OR HER AGE AS BEING EIGHTEEN YEARS OF AGE OR OLDER AND THE LAW ENFORCEMENT OFFICIAL ACTS IN GOOD FAITH RELIANCE ON SUCH MISREPRESENTATION IN CONDUCTING THE INTERROGATION; if
(IT) The juvenile is emancipated from the parent, guardian, or legal or physical custodian; or #>
(III) The juvenile is a runaway from a state other than Colorado'and is of sufficient age and understanding.

Ch. 332, see. 10, § 19-2-511(2), 1999 Colo. Sess. Laws 1869, 1374-75. Because the juvenile in the case before us did not fit any of the conditions stated in section 19-2-511(2)(a), the totality of the cireumstances test the majority utilizes is plainly inapplicable under the statute.

In my opinion, we cannot graft the totality of the cirenmstances test onto section 19-2-511(5) because the General Assembly did not choose to do so in making its post-NMicholas amendments. We must presume that the General Assembly acted with full knowledge of our judicial precedent on the subject. Pierson, 48 P.8d at 1219; Resolution Trust Corp. v. Heiserman, 898 P.2d 1049, 1054 (Colo.1995). We consider the General Assembly's course of action and intent when enacting and amending statutes. Empire Lodge Homeowners' Ass'n v. Moyer, 39 P.3d 1139, 1152 (Colo.2001). Therefore, because the General Assembly-in deciding how to address our Nicholas decision-chose not to create a totality of the cireumstances test for written waivers of parental presence under section 19-2-511(5), except as provided in section 19-2-511(2), I must conclude that it did not intend a totality of the circumstances test to be applied to section 19-2-511(5)'s written waiver requirement.

Moreover, the facts the majority relies upon do not support its conclusion that the written waiver is the juvenile's as well as his parent's. The majority recites that both Jer-on Grant and his parents signed a written Miranda waiver and his statement was voluntary and in full compliance with his constitutional rights. Maj. op. at 550. The majority observes that the juvenile and his parents had the opportunity to consult before the police interrogation, and they did so. Maj. op. at 550. However, the majority cites to no facts that show that the police presented the juvenile with the section 19-2-511(5) written waiver, that he read it, that he acknowledged its contents as his own, or that it was intended to be his written waiver. The opening recitation of the written instrument is solely in the "I ... expressly waive" of the mother; no parallel "I" or "we" recitation records this instrument to be the son's written waiver. The face of the document evidences otherwise. The police were intent on securing the mother's written waiver and had only an oral waiver from the son. The juvenile's oral waiver is not sufficient under the statute.

C.

Not Harmless Error

The trial court's error in admitting Jeron Grant's second statement in absence of his written waiver was not harmless. An error is harmless if it does not affect the substantial rights of the defendant. Crim. P. 52(a). Where the error is not of constitutional dimension, the error will be disregarded if there is not a reasonable probability that the error contributed to the defendant's conviction. Salcedo v. People, 999 P.2d 888, 841 (Colo.2000).

In this case, it is more than reasonably probable that the error in admitting Jeron Grant's confession to being an accessory by disposing of the shotgun contributed to his conviction for accessory. Tevlin v. People, 715 P.2d 888, 342 (Colo.1986). The error could have substantially influenced the verdict and affected the fairness of the proceedings. Tevlin, 715 P.2d at 342. Therefore, Jeron Grant's confession stating that he helped dispose of the shotgun was not harmless because there is a significant probability that the admitted statement substantially influenced the jury's verdict. Salcedo, 999 P.2d at 841.

IL.

Accordingly, I respectfully dissent. I would reverse the judgment of the court of appeals.

I am authorized to state that Justice MARTINEZ and Justice BENDER join in this dissent.

      . We granted certiorari specifically on the following issue: >
      Whether [Petitioner's] second incriminating statement, was taken out of his parent's presence and without a valid waiver in violation of section 19-2-511, 6 C.R.S. (2000), of the Children's Code; the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution; and Article II, sections 1, 18, and 25 of the Colorado Constitution.
      We address only the first basis, section 19-2-511, because we previously resolved these constitutional issues in Nicholas v. People, 973 P.2d 1213 (Colo.1999).

      . The committee adopted the CCDB representative's language in its entirety: "This express waiver shall be in writing and shall be obtained only after full advisement of the juvenile and his or her parent, guardian, or legal or physical custodian of the juvenile's rights prior to the taking of the custodial statement by a law enforcement official." See § 19-2-511.

      . See People v. Grant, 30 P.3d 667, 677 (Colo. App.2000) (Roy, J., concurring in part and dissenting in part)('However, I am concerned that the majority's opinion will, at best, dilute what I perceive to be the plain meaning of the phrase 'shall be in writing' or, at worst, render the phrase meaningless.").

      . Were it necessary to reach the signature issue, I would conclude that the General Assembly intended that a police-prepared written waiver must be signed, initialed, or in some other manner, expressly adopted by both the parent and the juvenile as their own. The majority demonstrates that the General Assembly has used "in writing" in some circumstances to include the requirement of a signature and sometimes has stated a signature requirement, in addition. Maj. op. at 547. Because the legislature intended the statute here to protect the juvenile, we should - construe the statutory language in favor of requiring the juvenile's formal adoption of the document in some manner.

      . I use the term "parent" in this dissent to refer to "parent, guardian, or legal or physical custodian" as set forth in section 19-2-511(5).


author: Justice HOBBS

text:
    David WHITAKER, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
    No. 00SC866.
    Supreme Court of Colorado, En Banc.
    June 3, 2002.
    As Modified on Denial of Rehearing June 24 and July 1, 2002.

      David S. Kaplan, Colorado State Public Defender, Shann Jeffery, Denver, Colorado, Attorneys for Petitioner.
    Ken Salazar, Attorney General, Robert Mark Russel, Assistant Solicitor General, Denver, Colorado, Attorneys for Respondent.
   Justice HOBBS

delivered the Opinion of the Court.

A jury convicted the defendant, David Whitaker, of possessing with intent to distribute over 1,000 grams. of methamphetamine, a schedule II controlled substance, and importing methamphetamine into Colorado. Whitaker claimed that his conviction should be reversed because the trial judge did not instruct the jury to apply the mens rea of "knowingly" to both the quantity and the importation of the drug. The court of appeals upheld Whitaker's conviction. We agree.

We hold that the General Assembly, in section 18-18-405, did not intend to apply a culpable mental state to the quantity of drugs the defendant distributed, manufactured, dispensed, sold, or possessed. We also hold that importation under Colorado's special offender statute, section 1818-407, does not include a mens rea requirement. The jury found beyond a reasonable doubt that the defendant possessed the drug quantity specified by section 18-18-405(8)(a)(III), and imported the drugs across state lines as specified by section 18-18-407(1)(d). Accordingly, we uphold Whitaker's conviction and sentence.

I.

On January 14, 1998, David Whitaker was a passenger on a Greyhound bus en route from Los Angeles, California to Denver, Colorado. The bus stopped in Grand Junetion, Colorado for routine service and to change drivers. Passengers were required to leave the bus during this stop. After the passengers had reboarded, three Grand Junction Police Department officers entered the bus, identifying themselves as police officers. Two of the officers began talking to each of the bus passengers, including Whitaker.

The officers testified that Whitaker appeared nervous while talking to them. When asked about his luggage, Whitaker told the police that he had none. The officers pointed to a black bag near Whitaker and asked if it was his. Whitaker responded that it was not his bag, but said he had placed his jacket and a few other .items inside it because no one else appeared to be using it. Whitaker then consented to a search of the bag. The officers discovered 8.8 pounds of uncut methamphetamine contained in several duct tape covered packages inside the bag.

The prosecution charged Whitaker with several drug offenses At trial, Whitaker argued that he did not possess the drugs and did not know that the packages of drugs were in the bag. The defense did not dispute the facts that the bag contained 8.8 pounds of methamphetamine and that the drugs came across Colorado's state lines via the Greyhound bus. The jury convicted Whitaker of possessing 1,000 grams or more of a schedule II controlled substance with intent to distribute and importation of a schedule II controlled substance. The trial court sentenced him to twenty- years in state prison.

The court of appeals affirmed Whitaker's conviction and sentence. People v. Whitaker, 32 P.3d 511 (Colo.App.2000). The court of appeals found that the trial court had correctly instructed the jury on the elements of possession of 1,000 grams or more of a controlled substance with intent to distribute and on the charge of importation of a controlled substance. It held that the prosecution need not prove that Whitaker "knowingly" imported the controlled substance, nor that the defendant "knew" the drugs weighed more than 1,000 grams. Id. at 517-19. The court concluded that special offender drug importation under section 18-18-407(1)(d), 6 C.RS. (2001), and the quantity of a controlled substance possessed under section 18-18-405, 6 C.R.S. (2001), have no mens rea requirement. Id. at 517-18,

We granted certiorari in People v. Whitaker, 32 P.3d 511 (Colo.App.2000), to review the court of appeals' judgment. We uphold the judgment.

IL.

We hold that the General Assembly, in section 18-18-405, did not intend to apply a culpable mental state to the quantity of drugs the defendant distributed, manufactured, dispensed, sold, or possessed. We also hold that importation under Colorado's special offender statute, section 18-18-407, does not include a mens rea requirement. The jury found beyond a reasonable doubt that the defendant possessed the drug quantity specified by section 18-18-405(8)(a)(III), and imported the drugs across state lines as specified by section 18-18-407(IM)(d). Accordingly, we uphold Whitaker's conviction and sentence. '

A.

Section 18-18-405 and Quantity of Drug

Whitaker argues that the trial court erroneously instructed the jury on the charge of possession with intent to distribute over 1,000 grams of a controlled substance, because it did not clearly instruct that the mens rea "knowingly" applied to the drug quantity. We disagree. '

Section 18-18-405(8)(a)(III) applies to Whitaker because the jury convicted him of possessing more than 1,000 grams of methamphetamine, a schedule II controlled substance, with the intent to distribute. Section 18-18-405(8)(a)(II1) defines the required sentence for a defendant convicted of:-unlawful distribution, manufacturing, dispensing, sale or possession of 1,000 grams or more of a schedule I or II controlled substance.

Whitaker argues that the quantity of drugs contained 'in section 18-18-is an essential element of the crime of possession with intent to distribute, and the mens rea contained in section 18-18-405(1)(a), "knowingly," must apply to it. However, whether the quantity of drugs involved in the offense requires a mens rea is a matter of statutory interpretation. «"Our fundamental responsibility in interpreting a statute is to give effect to the General Assembly's purpose and intent in enacting the statute." Empire Lodge Homeowners' Ass'n v. Moyer, 39 P.3d 1139, 1152 (Colo.2001). "If the plain language of the statute clearly expresses the legislative intent, then the court must give effect to the ordinary meaning of the statutory language. Likewise, the court should avoid interpreting a statute in a way that defeats the obvious intent of the legislature." Pediatric Newrosurgery, P.C. v. Russell, 44 P.3d 1063, 1068 (Colo.2002). We must read the statute as a whole, construing each provision consistently and in harmony with the overall statutory design, if possible. Id.; Empire Lodge, 839 P.8d at 1152.

Here, section 18-18-405(1)(a) defines the offense, and the provisions of 18-18-405(2), (8), (5) and (6) set forth the applicable punishment levels. This statutory structure demonstrates the General Assembly's intent to separate sentencing factors, such as drug type and quantity, from the elements of the crime. Section 18-18-405(8)(a) does not prescribe drug quantity as an element of the offense, nor does it require proof of a culpa ble mental state in regards to it. Section 18-18-405(1)(a) sets forth the elements of the crime; the mens rea applies to each of these.

Although section 18-18-405(1)(a) requires the prosecution to prove that the defendant "knowingly" distributed, manufactured, dispensed, sold or possessed the controlled substance, nothing in the statute's language suggests that the prosecution must show that the defendant "knew" the actual weight of the drugs under section 18-18-405(8)(a). To the contrary, section 18-18-405(8)(a) triggers the level of punishment upon proof that the drug quantity involved in the offense was "an amount that is or has been represented to be" the amount specified by subsections (I), (I1), or (III) thereunder. In this case, based on the jury's verdict finding the quantity to be 1000 grams or more of a schedule I or II controlled , substance, - section - 18-18-405(8)(a)(III) provided for a sentence to the department of corrections for a term greater than the maximum presumptive range, but not more than twice the maximum presumptive range provided for such offense in seetion 18-1-105(1)(g).

The statute thereby sets forth the drug quantity separately from the elements, with no mens rea requirement and with the apparent design of separating the applicable punishment from the creation and definition of the offense. People v. Ramirez, 997 P.2d 1200, 1208 (Colo.App.1999)(holding that quantity of a controlled substance possessed is not a substantive element of the offense), aff'd by am equally divided court, 48 P.8d 611 (Colo.2001).

Any amount of drugs, even less than a usable quantity, can support a convietion under 18-18-405(1)(a). Richardson v. People, 25 P.8d 54, 58 (Colo.2001)("In a possession case, a jury may return a verdict of guilty if it finds, beyond a reasonable doubt, that the defendant knowingly possessed any quantity of a controlled substance."). The quantity of drugs turns on objective standards and requires no inquiry into the defendant's state of mind. See United States v. Normandeau, 800 F.2d 953, 956 (9th Cir.1986)(stating that proof of thé amount of drugs is far different from proof that the defendants knew of the amount). ~

The underlying purpose of section 18-18-405(8) is to punish more severely those offenders who deal with large quantities of controlled substances. - The legislature's choice to do so is within its prerogative. People v. Martinez, 36 P.3d 201, 204 (Colo.App.2001); see also Gorman v. People, 19 P.3d 662, 666 (Colo.2000)(stating that we look to the legislative context to see if a mens rea requirement - applies). - Section - 18-18-405(8)(a) does not create an additional element for the underlying substantive offense; rather, it defines cireamstances that, if proven beyond a reasonable doubt, may require a sentence greater than the presumptive minimum contained in section 18-1-105(1)(a), 6 C.R.S. (2001). See People v. Ceja, 904 P.2d 1808, 1810 (Colo.1995)(stating that Colorado Supreme Court cases "have turned not on the quantity of substance found but rather on the knowing possession of that substance"); Ramires, 997 P.2d at 1208 ("Section 18-18-405(8)(a), in itself, does not make possession unlawful and, therefore, does not set forth an offense.").

Here, the issue of drug quantity went to the jury and the possession with intent to distribute more than 1,000 grams of a schedule II controlled substance jury instruction clearly included the quantity of drugs as a fact that must be proven beyond a reasonable doubt. Thus, we find no error. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2848, 147 L.Ed.2d 485 (2000).

B.

Section 18-18-407 and Importation of the Drug

The jury found beyond a reasonable doubt that Whitaker imported a controlled substance into Colorado, a special offender factual finding for the jury to make under section 18-18-407(1)(d), 6 C.R.S. (2001). Whitaker argues a violation of his constitutional due process rights because the trial court did not instruct the jury to find any culpable mental state regarding the importation charge. He contends that: (1) the Colorado special offender statute creates a separate substantive offense or, alternatively, an additional element for the underlying offense; and (2) the mens rea of "knowingly" must apply to the special offender statute, section 18-18-407, 6 C.R.S. (2001). We disagree.

The plain language of Colorado's special offender statute with regard to importation does not include a culpable mental state. See § 18-18-407, 6 C.RS. (2001). Rather, this provision deals with the level of punishment. Vega v. People, 898 P.2d 107, 112 (stating that importation provision addresses punishment, not the creation of a substantive offense) The plain language of the statute indicates that "(1) it is triggered only after a felony drug conviction, and (2) its effect is to increase the required sentencing range upon a finding of one of the specified 'aggravating circumstances." " Vega, 898 P.2d at 118. "Once a jury bas determined that a defendant possessed the mental state required for conviction of the substantive offense, an enhanced sentence must be imposed whether or not the defendant fully knew of the cireumstances leading to the special offender finding." Ramirez, 997 P.2d at 1205.

The legislative history of the special offender provision demonstrates the General Assembly's intent to address punishment rather than defining the elements of an offense. Vega, 898 P.2d at 118 ("During discussion of the motion to adopt the amendment, Joseph Mackey, one of its drafters, testified that the special offender provision is 'not a substantive charge' ...."). The General Assembly added this provision to the Controlled Substances Act to allow greater penalties for drug traffickers. Id. The legislature accomplished this purpose by listing certain extraordinary aggravating cireum-stances that subject a defendant to a greater sentence as a special offender. Id. at 112; Ramirez, 997 P.2d at 1205.

Colorado law requires the fact-finder to enter a special finding in regard to the existence of the special offender cireum-stance. Ramirez, 997 P.2d at 1206 ("Notice is required, trial by jury is not eliminated, and a finding of the existence of the [special offender cireumstance] beyond a reasonable doubt is required before a defendant's sentence is increased.") '

In this case, the jury was instructed to find the presence or absence of the special offender importation fact only if it found Whitaker guilty of the underlying crime, possession with intent to distribute. Whitaker argues that the jury verdict form violated his due process rights because it did not apply a mens rea to the importation of methamphetamine charge. We disagree. The special offender statute's importation feature does not include a mens rea requirement. We find no error.

We also reject Whitaker's argument that Apprendi requires a different result. Here, the fact-finder determined the existence of the special offender fact, importation, beyond a reasonable doubt, in accordance with Apprendi. Apprendi, 580 U.S. at 490, 120 S.Ct. 2348.

IIL.

Accordingly, we affirm the judgment of the court of appeals upholding Whitaker's conviction and sentence.

      . The prosecution charged Whitaker with the following offenses: Special Offender-Importation of a Schedule II Controlled Substance, § 18-18-407(1)(d), 6 C.R.S. (2001)(Sentence Enhancer); Possession of a Schedule II Controlled Substance-Intent to Distribute (1,000 Grams or More), § 18-18-405(3)(a)(III), 6 C.R.S. (2001); Possession of a Schedule II Controlled Substance-Intent to Distribute, § 18-18-405(2)(a)(I), 6 C.R.S. (2001); and Possession of Drug Paraphernalia, § 18-18-428(1), 6 C.R.S. (2001). The prosecution subsequently dismissed the two latter offenses prior to trial.

      . We granted certiorari on the followingr issues: 1. Whether the district court erroneously instructed the jury regarding the elements of the crime of possession of one thousand grams or more of a controlled substance with intent to distribute, and if the court of appeals erroneously concluded that the prosecution was not required to prove that petitioner knowingly possessed such amount to trigger an enhanced sentence?
      2. Whether the district court erroneously treated petitioner's special offender charge as a "sentence enhancer" rather than as a substantive offense or as an element of the possession with the intent to distribute charge, and if the court of appeals incorrectly relied on People v. Ramirez to determine that the prosecution need not prove mens rea with respect to , that charge?

      . Section 18-18-405(3)(a)(III), 6 C.R.S. (2001), provides:
      (3)(a) Except as otherwise provided in section 18-18-407 relating to special offenders, any person convicled pursuant tio paragraph (a) of subsection (2) of this section for knowingly manufacturing, dispensing, selling, «distributing, possessing, or possessing with intent to manufacture, dispense, sell, or distribute, or inducing, attempting to induce, or conspiring with one or more other persons, to manufacture, dispense, sell, distribute, possess, or possess with intent to manufacture, dispense, sell, or distribule an amount that is or has been represented to be:

      (III) One thousand grams or one kilogram or more of any material, compound, mixture, or preparation that contains a schedule I or schedule II conirolled substance as listed in section 18-18-203 or 18-18-204 shall be sentenced to the department of corrections for a term greater than the maximum presumptive range but not more than twice the maximum presumptive range provided for such offense in section 18-1-105(1)(a).

      . Subsection (1) defines the elements of the offense covered by this statute. Subsection (2) defines the level of felony to be applied based upon the type of drug involved in the offense. Subsection (3) defines the required sentence for offenses involving various large quantities of drugs. Subsection (5) works to apply subsection (3) to those defendants who commit a section 18-18-405 offense two or more times within six months and the violations involve an aggregate amount of at least 25 grams of a controlled substance. Subsection (6) requires revocation of the offender's driver's license upon conviction.

      . Because the quantity of drugs is not an element of the offense under this statutory design, section 18-1-503(4) does not apply. See § 18-1-503(4), 6 C.R.S.2001 (providing that where a statute defining an offense contains a culpable mental state, that mental state applies to every element of the offense, unless an intent to limit its application clearly appears).

      . Because we find that "knowingly" does not apply to the quantity of drugs, we need not reach the question of whether or not the jury instruction in this case applied a mental state to the drug quantity.

      . Section 18-18-407(1)(d) provides: "The defendant unlawfully introduced, distributed, or imported into the state of Colorado any schedule I or II controlled substance (contained in part 2 of this article)."

      . In Vega, the special offender statute was section 18-18-107, the precursor to the statute we rule upon today, section 18-18-407. ..


author: Chief J ustiée MULLARKEY

text:
    CITY OF COLORADO SPRINGS, a home rule municipality, Petitioner,, v. Valerie POWELL, natural parent of decedent, Steven Powell, individually and as next friend and natural parent of James Powell, a minor, Respondent.
    No. 01SC87.
    Supreme Court of Colorado, En Banc.
    June 17, 2002.

      Patricia K. Kelly, City Attorney, Colorado Springs, Colorado, Attorney for Petitioner.
    (ilenn S. Pressman, Melat, Pressman & Highie, LLP, Colorado Springs, Colorado, Attorneys for Respondent.
   Chief J ustiée MULLARKEY

delivered the Opinion of the Court.,

This is our first opportunity to examine a provision of the Colorado Governmental Immunity Act (CGIA) that allows suit for injuries resulting from the operation and maintenance of a sanitation facility. This wrongful death and personal injury action arises out of an accident in Colorado Springs where two brothers fell into a drainage ditch. One brother survived with injuries, the other did not.

We hold that a drainage ditch is a sanitation facility within the meaning of the CGIA. We further outline the extent of the waiver provision. We do not import the design limitation from the dangerous condition provision of the CGIA into the operation and maintenance provision. Furthermore, we do not limit the operation and maintenance provision to acts or omissions that take place within the facility. Following the plain language of the waiver and the definitions provided in the CGIA, we hold that any injury that allegedly results from an act or omission that is connected with the purpose of the facility is sufficient to establish a waiver of immunity.

I. Facts and Prior Proceedings

Valerie Powell (Powell) brings this action on her own behalf as well as on behalf of her son James and her deceased son Steven. This action arises out of an accident that occurred when the boys were twelve and five years old, respectively. While Powell was attending a class in a building owned by N.S. Properties, James and Steven played outside, near the building. Their play brought them to the edge of a city drainage ditch. Both boys slipped and fell into the drainage facility. James was able to pull himself out of the facility; Steven's body was later found downstream.

Powell brought negligence claims against both the City of Colorado Springs (the city) and N.S. Properties The city moved to dismiss Powell's complaint or, in the alternative, for summary judgment, claiming governmental immunity. «

Powell argued that either of two provisions of the CGIA permit her to sue. First, seetion 24-10-106(1)(f) allows suits for injuries resulting from the operation and maintenance of a sanitation facility (operation and maintenance provision). 7 CRS. (2001). Second, section 24-10-106(1)(e) allows suits for injuries resulting from a dangerous condition of a sanitation facility (dangerous condition provision). 7 -°C.R.S. (2001). Powell asserted that the condition of the facility supports a finding that she may sue under either of these provisions. Specifically, she alleged that the ditch itself had steep concrete sides that made escape difficult, the fence protecting the facility had been knocked. down, the banks of the facility were muddy and overgrown with bushes, and there were no signs warning of the danger of injury or death.

The trial court agreed that Powell could bring suit. The court held that the operation and maintenance of a facility includes the entire easement associated with the facility and that the "slippery surfaces, edges ob-secured by overgrowth and shrubbery and destroyed barriers" arose from the operation and maintenance of the facility. Regarding the dangerous condition waiver, the court determined that further discovery was required.

The court of appeals affirmed. Powell v. City of Colorado Springs, 25 P.3d 1266 (Colo.App.2000). In a published opinion, the court noted that the "city's negligent failure to maintain the area surrounding the drainage ditch may have contributed to Steven's death and James' injuries." Id. at 1268. The court concluded that this was sufficient for both an operation and maintenance waiver and a dangerous condition waiver. Id. We granted certiorari. -

II. Analysis

In Colorado, governmental immunity for tort actions was common-law based. In 1971, this court overruled common law governmental immunity in its entirety. Evans v. Bd. of County Comm'rs, 174 Colo. 97, 482 P.2d 968 (1971); Flournoy v. Sch. Dist, No. 1, 174 Colo. 110, 482 P.2d 966 (1971); Proffitt v. State, 174 Colo. 113, 482 P.2d 965 (1971). We did so because the waivers to immunity and the exeeptions to those waivers had become exceedingly complicated and in many ways arbitrary. Evans, 174 Colo. at 101, 482 P.2d at 970. We left it up to the General Assembly to determine the proper parameters of governmental immunity. Id. at 105, 482 P.2d at 972. The legislature responded with the CGIA.

The CGIA allows injured persons to sue governmental entities in certain specific circumstances. § 2410-106, 7 CRS. (2001). The provisions allowing suit are to be construed broadly, in favor of the injured party. See Bertrand v. Bd. of County Comm'rs, 872 P.2d 228, 227 (Colo.1994). Whether a governmental entity can be sued is a question of subject-matter jurisdiction. Trinity Broad. of Denver v. City of Westminster, 848 P.2d 916, 928 (Colo.1993). The injured plaintiff has the burden of establishing that immunity has been waived. Id. at 925.

In the current case, Powell alleges she can sue under two provisions of the CGIA. First, she argues that, pursuant to section 24-10-106(1)(f), immunity is waived because the injury resulted from the operation and maintenance of a sanitation facility. This provision details that:

Sovereign immunity is waived by a public entity in an action for injuries resulting from: ....
(£) The operation and maintenance of any public water facility, gas facility, sanitation facility, electrical facility, power facility, or swimming facility by such public entity.

§ 24-10-106(1)(f), 7 C.R.S. (2001).

Second, pursuant to section 24-10-106(1)(e), Powell argues that immunity is waived because the injury resulted from the dangerous condition of a sanitation facility. This provision allows suit for injuries resulting from:

(e) A dangerous condition of any public hospital, jail, public facility located in any park or recreation area maintained by a public entity, or public water, gas, sanitation, electrical, power, or swimming facility.

§ 24-10-106(1)(e), 7 C.R.S. (2001).

Because the trial court found that suit was proper under the operation and maintenance provision, we begin our analysis there. We first examine the scope of the term "sanitation facility" and hold that the phrase encompasses the drainage facility at issue here. Second we apply the operation and maintenance provision to the facts alleged in this case. We hold that because Powell has established a nexus between the injuries alleged and the operation and maintenance of the facility, immunity is waived. Because we find that the suit can be maintained under section 24-10-106(1)(f), we do not address a 24-10-106(1)(e), dangerous condition waiver.

A. Definition of "Sanitation Facility"

This is our first opportunity to address the scope of the term "sanitation facility" in the CGIA. The court of appeals, however, has interpreted the phrase "sanitation facility" on a number of occasions. See Scott v. City of Greeley, 981 P.2d 525 (Colo.App.1996); Smith v. Town of Estes Park, 944 P.2d 571 (Colo.App.1996); Burnworth v. Adams County, 826 P.2d 368 (Colo.App. 1991). In the first of these decisions, Burnworth, the court looked to other provisions in the Colorado Revised Statutes in an attempt to discern the meaning of "sanitation facility." 826 P.2d at 370. After examining the definitions of similar terms, the court concluded that the sanitation facility exception of the CGIA included injuries resulting from the operation and maintenance of a storm drain. Id.

In subsequent cases, the court of appeals held that an injury from a storm sewer and an injury from ice accumulation in part of a storm water drainage system were within the ambit of the sanitation facility exception. Scott, 981 P.2d 525; Smith v. Town of Estes Park, 944 P.2d 571 (Colo.App.1996). We agree with the court of appeals' interpretation of sanitation facility. '

When construing a statute, we strive to give effect to the intent of the General Assembly. State v. Nieto, 998 P.2d 498, 500 (Colo.2000). When a phrase has a plain meaning, or is defined in the statute, we need not resort to rules of statutory interpretation. Farmers Ins. Exch v. Bill Boom Inc., 961 P.2d 465, 470 (Colo.1998). As a logical corollary, when a phrase is not defined and does not have a plain meaning, we explore other sources. Nieto, 998 P.2d at 501.

Because "sanitation facility" is not defined in the CGIA and does not possess a common meaning, we must look outside of the statute to interpret the phrase. Accord City & County of Denver v. Gallegos, 916 P.2d 509, 511 (Colo.1996)(concluding that the- phrase "public water facility" in section 24~10-106(1)(f) does not have an ordinary meaning). "Sanitation facility" is a technical term and should be construed accordingly. See § 2-4-101, 1 C.R.S. (@2001)(directing that "phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly"); Nieto, 998 P.2d at 500.

Although sanitation facility is not defined, "sanitation district," § 32-1-108(18), 9 C.R.S. (2001), and "sewerage facilities," § 30-20-401(4), 9 C.R.S. (2001), are. We look to the definitions of these phrases to aid our analysis. See B.G.'s, Inc. v. Gross, 28 P.3d 691, 694 (Colo.2001){noting that other statutes dealing with the same subject is an extrinsic aid to statutory interpretation). A "sanitation district" is defined as a "special district that provides for storm or sanitary sewers, or both, flood and surface drainage, treatment and disposal works and facilities, or solid waste disposal facilities or waste services, and all necessary or proper equipment and appurtenances incident thereto." § 32-1-103(18), 9 C.R.S. (2001). - Similarly, "sewer age facilities" are defined as "the various devices used in the collection, treatment, or disposition of sewage or industrial wastes of a liquid nature, or storm, flood, or surface drainage waters, including all inlets, collection, drainage, or disposal lines, intercepting sewers, joint storm and sanitary sewers, sewage disposal plants, and outfall ..sewers." § 30-20-401(4), 9 C.R.S. (2001). ._.

- Because the General Assembly has defined both "sanitation district" and "sewerage facilities" to encompass drainage of raw sewage as well as storm and surface waters, we hold that the term "sanitation facility" encompasses this broad range of functions as well. A broad interpretation of the waiver provisions of the CGIA is appropriate because the CGIA is in derogation of the common law. Medina v. State, 35 P.3d 448, 458 (Colo.2001)

The drainage ditch in this case, a ditch built by and for the city to accommodate storm water runoff, clearly fits this broad definition of sanitation facility.

B. Application of the Operation and Maintenance Provision

Having outlined the scope of the term "sanitation facility" and concluded that the drainage ditch in this -case falls within the scope of that definition, we now apply section 24-10-106(1)(f) to the facts of this case. -

Pursuant to section 24-10-106(1)(£), an injured plaintiff can sue for "injuries resulting from ... [the' operation and maintenance of any public ... sanitation facility." We must first determine what the concepts "operation" and "maintenance" mean. Operation is defined in the CGIA:

"Operation" means the act or omission of a public entity or public employee in 'the exercise and performance of the powers, duties, and functions vested in them by law with respect to the purposes of any public hospital, jail, or public water,; gas, sanitation, power, or swimming facility.

§ 24-10-103(8)(a), 7 C.R.S. (2001).

This broad definition of "operation" includes the concept of "maintenance." Although not defined by the CGIA, the common meaning of maintenance is "the- work of keeping a building, machinery, ete. in a state of good repair". Webster's New World Dictionary of the American Language 854 (2nd ed.1974). Moreover, in Swieckowski v. City of Fort Collins, 984 P.2d 1380 (Colo.1997), this court noted that "maintain" is defined as "keeping a constructed edifice, structure, or improvement in the same general state of being, repair, or efficiency as initially constructed." 984 P.2d at 1385; see also Medina, 35 P.3d at 455. Surely repair of a facility is a "power[ ], dutly], and function|l ]" contemplated by the term "operation."

We must determine, then, if Powell has alleged injuries that resulted from an act or omission of the city that is legally vested in the city regarding the purpose of the ditch. Or, more simply, whether the injuries resulted from something the city did or did not do that is connected with the purpose of the ditch. ~

In this case, Powell makes a number of allegations regarding the cause of her sons' injuries. She points to the steep concrete ditch without a means of escape, the absence of signs warning of the danger of injury or death, the fence in disrepair, and the muddy, overgrown banks of the ditch. All of these allegations can be characterized as either inadequate design, or creating an unsafe situation. We discuss each of these in turn.

First, Powell claims that the city was negligent in failing to post warning signs that would have alerted passersby to the danger of the ditch. She also contends that the city was negligent in constructing the ditch with steep concrete sides that make it difficult to eseape. -In support of its assertion that these allegations deal with design flaws, the city submitted an affidavit to the trial court of a city engineer who oversaw the design and construction of the drainage ditch. © The engineer noted that the steep concrete sides of the ditch are as designed and that the ditch was not designed to include a fence or warning signs. We agree that both of these allegations take issue with the design of the ditch. Had the ditch been designed with warning signs or with a means of escape, the injuries might have been prevented.

The city does not contest that the design of the ditch is connected with the purpose of the ditch. Rather, it argues, citing Swieckowski, that the CGIA limits suit for injuries resulting from design flaws. We disagree.

An injured plaintiff cannot sue under the "dangerous condition" provision of the CGIA merely by alleging design flaws. Swieckowski, 984 P.2d at 1886. The design exception, however, is an express statutory provision of the CGIA and it only applies to the dangerous condition provision. - See § 24-10-108(1), 7 C.R.S. (2001) (explicitly excepting design flaws from the statutory definition of "dangerous condition.") By its very terms, the operation and maintenance provision does not require a finding of a dangerous condition. Compare § 24-10-106(1)(f), 7 C.R.S. (2001)(allowing suit for an injury resulting from "operation and maintenance of" a sanitation facility), with § 24-10-106(1)(e), 7 CRS. (2001)(allowing suit for an injury resulting from "a dangerous condition of" a sanitation facility)(emphasis added). There is no basis for importing the design limitation from the section 24-10-106(1)(e) dangerous condition provision into the section 24-10-106(1)(f) operation and maintenance provision. Powell's allegations regarding the design of the facility, then, are sufficient to establish a right to sue. -

Second, Powell alleges that a break in the fence alongside the ditch and the muddy, slippery, and overgrown sides of the ditch led to her song'. injuries. The city asserts that the banks of the ditch are not part of the drainage facility and thus not within the seope of the CGIA provision. We disagree.

The city seeks to narrow the scope of section 24-10-106(1)(f) to negligence regarding the concrete flume through which the water runs. Such a narrow view disregards the reality that areas immediately surrounding a facility often affect the overall condition of the facility. For example, in Medina, a case dealing with an immunity waiver for the dangerous condition of a roadway, we reiterated that a "roadway does not exist in the abstract and that therefore existing physical features which are continuous to the roadway are part of the design of the improved roadway." 35 P.3d at 455 (citing Swieckowski, 934 P.2d at 1386). Similarly, in State v. Moldovan, $42 P.2d 220 (Colo.1992), we refused to limit a governmental immunity waiver to conditions that originated within the actual surface of the roadway. In Moldovan, a motorist was injured when a cow gained aceess to a highway through a hole in a fence adjacent to the highway. In construing the CGIA provision that allows suit for injuries resulting from a dangerous condition on a roadway, we rejected the state's argument that the CGIA provision did not include a condition that was not "an integral part of the highway itself." Id. at 222. Also, in Stephen v. City & County of Denver, 659 P.2d 666, 668 (Colo.1983), we stated that limiting an immunity waiver "to the physical condition of the foad surface gives too cramped a reading to the statute and ignores the purpose for which this exception to sovereign immunity was created." We noted that such a limited reading "is at odds with the presumption that in enacting the statute a just and reasonable result was intended." Id. at 667. Thus we reject the city's contention that the banks of the drainage facility are too attenuated from the facility to establish a right to sue.

The city also argues that although the fence and banks are within its eighty-foot easement, the owners of the land through which the ditch runs, not the city, is responsible. The city asserts that the government would grind to a halt if it were to be liable for the "lawful activities of a landowner." We reject the city's characterization of the inquiry.

As an initial matter, we note that actual liability is not at issue for jurisdictional purposes. "[WJhether the state is immune and whether it is liable are two distinct inquiries." Medina, 35 P.3d at 460, n9. Accordingly, at this stage we do not address issues of negligence or causation. Swieckowski, 934 P.2d at 1884. |

Moreover, Powell does not assert that the city waives immunity for the actions of a third party. Rather, Powell alleges that the city is liable either for failing to maintain the banks of its ditch or through its maintenance of the actual ditch.

A failure to maintain is within the scope of the operation and maintenance provision. The statutory definition of operation clearly includes acts of both commission and omission. § 24-10-108(8)(a); see also Springer v. City & County of Denver, 18 P.3d 794, 801 (Colo.2000){noting that "a public entity may proximately cause a condition not only by affirmatively creating it, but also by its omission in failing to reasonably discover and correct the unsafe condition"); Stephen, 659 P.2d 666 (finding a waiver of immunity for failing to re-align a stop-sign).

Powell also alleges that evidence shows that the city may not merely have been negligent in failing to maintain the banks of the ditch, but it may have affirmatively caused the condition. She speculates that in patching a hole in the ditch, the city knocked down a 'portion of the fence and its trucks muddied the banks 'of the ditch. Powell highlights evidence that would tend to show that the city was involved in maintenance in the area in which the boys obtained access to the ditch First, Powell alleges that the fallen fence is next to a portion of the drainage ditch that has a large concrete patch indicating a repair. Second, she alleges that local business owners and workers informed her that they saw the city working in the location of the accident. Lastly, she points to testimony of city employees that they performed periodic inspections of the drainage ditch in the area of the accident and performed maintenance on an as-needed ba-sig.

Unfortunately, the city employee testimony was not obtained until after the trial court order denying the city's motion for dismissal and the trial court failed to determine whether there was evidence of the claim that the city knocked down the fence and muddied the area while maintaining the ditch. Although we could remand for further hearing on this issue, see Medina, 35 P.3d at 460-61 (remanding with directions that the trial court hold an evidentiary hearing pursuant to C.RC.P. 12(b)(1) to further determine whether the CGIA established a right to sue), we need not do so because we find a waiver under other facts in this case. It will be determined at trial whether the city was negligent in failing to maintain the banks of the ditch or whether it affirmatively created that condition of the banks.

III. Dangerous Condition Provision

Because we find that Powell can sue under the operation and maintenance provision, we need not address Powell's alternate argument that suit is permitted under the dangerous condition provision.

IV. Conclusion -

In sum, we find that Powell's claims regarding an unsafe design fit within the provision of the CGIA that allows suit for injuries resulting from the operation and maintenance of a sanitation facility. Moreover, we find that in arguing that the city failed to maintain the banks of the ditch, Powell alleges an act or omission that is within the seope of the waiver. Lastly, there is evidence that the city affirmatively created the condition of the ditch banks in the course of maintaining the facility. This too would be grounds for suit under the CGIA. Thus, we affirm the court of appeals.

      . Before the adoption of the CGIA this court did . address governmental immunity for maintenance of a sewer system. See Cerise v. Fruitvale Water & Sanitation Dist., 153 Colo. 31, 384 P.2d 462 (1963)(holding that the water and sanitation district is not immune from suit for an injury caused by a failure to replace a manhole cover).

      . In City & County of Denver v. Gallegos, 916 P.2d 509, 511 (Colo.1996), we discussed Bur-worth without disapproval.

      . To the extent that our pre-CGIA decision in Cerise, 153 Colo. 31, 384 P.2d 462, discussed supra, is relevant, see Comment, The Colorado Governmental Immunity Act: A Judicial Challenge and the Legislative Response, 43 U. Colo. L.Rev. 449, 461 (1972)(suggesting that the "sanitation facility" waiver provision may be a codification of the common-law exception of public water and sanitation facilities from immunity), 'our interpretation here is consistent with that opinion.

      . Thus, like so many terms of art in the law-"willful and wanton conduct," "depraved' and malignant heart"-the phrase "operation and maintenance" as used by the CGIA can be a redundancy.

      . The record is unclear as to when and by whom the fence was erected.

      . We have already made clear that the torts of a third party do not usually lead to subject matter jurisdiction against a governmental entity, See Jenks v. Sullivan, 826 P.2d 825 (Colo.1992)(finding that there is no right to sue when a third party shoots his estranged wife and her companion in a county courthouse).