author: Judge CASEBOLT.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Claire C. WELSH, Defendant-Appellant.
    No. 98CA2167.
    Colorado Court of Appeals, Div. V.
    April 11, 2002.
    Certiorari Granted Nov. 18, 2002.

      Ken Salazar, Attorney General, Elizabeth Rohrbough, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Karen N. Taylor, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge CASEBOLT.

Defendant, Claire C. Welsh, appeals the judgment of conviction entered upon a jury verdict rejecting her insanity defense and finding her guilty of first degree murder after deliberation. We reverse and remand for a new trial.

When defendant’s boyfriend attempted to end his romantic relationship with her, defendant went shopping for a handgun, but she was unable to purchase one because she lacked appropriate identification. She obtained the identification, returned to the gun store the next day, and purchased a revolver.

The following day, defendant arose early and drove her car to her cousin’s residence, left the car in front of the cousin’s house, and dropped the car keys into the cousin’s mail slot. She took the revolver from the car, walked back to the apartment she shared with the victim, undressed, got back into bed, and shot him in the back of the head while he was asleep.

Later that day, defendant called and asked her cousin to come to the apartment and then call 911 upon her arrival. When she reached the apartment, the cousin found defendant lying on the floor, naked, bloody, and in a fetal position.

Officers responding to the scene observed that defendant had a gunshot wound and found the victim lying in his bedroom with a revolver on his chest. Lividity patterns later disclosed that the victim had been dead and lying on his left side for some time before his body was moved.

Police initially assumed defendant was the victim of an assault. Defendant answered questions about her name and that of the victim, but remained silent in the face of questions about what had happened. She was transported to the hospital and treated, where she continued to remain silent when detectives and medical personnel asked her what had happened.

The day following the shooting, a detective found and impounded defendant’s car without obtaining a warrant. The detective got the keys from defendant’s cousin, and when the tow truck operator opened the vehicle to straighten the wheels, the detective shined his flashlight inside and observed a gun box on the passenger side of the vehicle. The box and incriminating documents were later seized from the vehicle and introduced at trial.

Defendant pleaded not guilty by reason of insanity. When being evaluated by psychiatrists, defendant told them she did not remember the shooting.

Two prosecution psychiatrists testified that, although defendant was suffering from depression and a borderline personality disorder, she was not psychotic and had the ability to know right from wrong at the time of the shooting. A defense psychologist opined that defendant was deeply depressed, perhaps psychotically so, and showed signs of contemplating suicide. A defense psychiatrist opined that defendant was psychotically depressed, that she dissociated at the time of the shooting, that she suffered from a severe personality disorder, and that she was legally insane at the time of the shooting. He stated that defendant did not have the capacity to distinguish between right and wrong and did not have the ability to form the necessary culpable mental state.

I.

Defendant contends that the trial court violated her Fifth Amendment right to be free from compelled self-incrimination by permitting the prosecution to introduce evidence of her pre-arrest silence as substantive evidence of her sanity and guilt and to comment upon it during opening statement and closing argument. We agree.

Both the Fifth Amendment and article II, § 18 of the Colorado Constitution provide that no person shall be compelled to testify against himself or herself in any criminal proceeding. The Fifth Amendment, however, not only protects the individual from being involuntarily called as a witness against himself or herself, but also grants a privilege not to answer official questions put to him or her in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him or her in future criminal proceedings. See Leflcowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973).

A.

The Supreme Court has not decided whether the use of a defendant’s pre-arrest silence as substantive evidence of guilt or sanity violates the Fifth Amendment. Relying upon Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), the People argue that we need not determine that issue here because defendant’s failure to answer questions about the shooting was admitted not as substantive evidence of her guilt, but to show that her silence was inconsistent with her later statements that she did not remember the shooting. We disagree.

In Jenkins, the Court held that the Fifth Amendment is not violated by the use of pre-arrest silence to impeach a defendant’s credibility when the defendant takes the stand at trial. The Court reasoned that, although it “can be argued that a person facing arrest will not remain silent if his failure to speak later can be used to impeach him,” once a defendant chooses to take the stand and testify, that defendant has an obligation to testify truthfully. Jenkins v. Anderson, supra, 447 U.S. at 236,100 S.Ct. at 2128, 65 L.Ed.2d at 93. Hence, the Court held that the Fifth Amendment right to silence was waived and further determined that the use of pre-arrest silence thereafter for impeachment advances the truth-seeking function of the trial.

Here, however, unlike the defendant in Jenkins, defendant did not testify. Further, based upon our review of the record, we conclude that the prosecution did not propose to use defendant’s silence at trial only for impeachment. At the evidentiary hearing, the prosecution argued that defendant’s willingness to answer biographical questions and failure to respond to questions about the shooting was probative of her mental state, indicated that at the time of the shooting she was aware of and appreciated the gravity of what she had done, and was good evidence that she knew right from wrong. The use of defendant’s silence merely to impeach her statements to the mental health experts was not raised at the hearing or at trial.

Nor did the prosecution actually limit its use of the evidence to impeachment. The prosecution mentioned defendant’s silence in the opening statement, examined six witnesses concerning it during its ease-in-chief, and suggested during closing argument that such silence indicated defendant was sane at the time of the shooting and “she knew what happened.”

For these reasons, we reject the argument that the prosecution used defendant’s silence as impeachment evidence only.

B.

The use of a defendant’s pre-arrest silence as substantive evidence of guilt is significantly different from its use to impeach the defendant’s credibility on the stand. See Combs v. Coyle, 205 F.3d 269, 281 (6th Cir. 2000). The federal circuits are divided on the admissibility of such evidence. Four circuits have concluded that it is inadmissible as substantive evidence of guilt in the prosecution’s case-in-chief. See Combs v. Coyle, supra; United States v. Burson, 952 F.2d 1196 (10th Cir.1991); Coppola v. Powell, 878 F.2d 1562 (1st Cir.1989); United States ex rel. Savory v. Lane, 832 F.2d 1011 (7th Cir.1987). Three other circuits, however, have reached the opposite conclusion. See United States v. Oplinger, 150 F.3d 1061 (9th Cir.1998); United States v. Zanabria, 74 F.3d 590 (5th Cir. 1996); United States v. Rivera, 944 F.2d 1563 (11th Cir.1991).

Those circuits that have found the use of pre-arrest silence inadmissible to prove guilt when the defendant does not testify have recognized that the right to remain silent, unlike the right to counsel, attaches before the institution of formal adversary proceedings and is not limited to persons in custody or those charged with a crime. See United States ex rel. Savory v. Lane, supra 832 F.2d at 1017. In addition, the right to silence, which historically has been given a broad scope, may be asserted by a suspect who is questioned during the investigation of a crime or by any person in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory. See Combs v. Coyle, supra; United States v. Burson, supra; cf. Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951)(the viability of the privilege depends on whether a responsive answer to the question might result in a harmful disclosure).

In contrast, the three circuits that have reached the opposite conclusion base their decisions on the lack of governmental coercion or compulsion to speak in a pre-arrest setting. See United States v. Oplinger, supra; United States v. Zanabria, supra, United States v. Rivera, supra. They reason that, as Justice Stevens stated in his concurring opinion in Jenkins v. Anderson, supra, the privilege against compulsory self-incrimination is irrelevant to a citizen’s decision to remain silent when he is under no official compulsion to speak. Justice Stevens opined that “in determining whether the privilege is applicable, the question is whether [the defendant] was in a position to have his testimony compelled and then asserted his privilege, not simply whether he was silent.” Jenkins v. Anderson, supra, 447 U.S. at 243-44, 100 S.Ct. at 2132, 65 L.Ed.2d at 98.

However, as Justice Marshall explained in his dissent in Jenkins:

[U]nder that view, a person’s right not to incriminate himself exists only if the government has already attempted to compel him to do so. If no officials have tried to get the person to speak, he evidently has a duty to incriminate himself, because the reporting of a crime is a civic duty and the Fifth Amendment is not applicable since the decision to speak or remain silent is, at that time, “voluntary.”
But the prohibition against compelled self-incrimination is another way of expressing the right not to incriminate oneself. After all, the only means of compelling a person to incriminate himself is to penalize him if he does not.

Jenkins v. Anderson, supra, 447 U.S. at 250 n. 4, 100 S.Ct. at 2135, 65 L.Ed.2d at 102 (Marshall, J., dissenting) (citations omitted).

We agree with the reasoning of the First, Fifth, Sixth, and Tenth Circuits and Justice Marshall that the Fifth Amendment right to be free from self-incrimination applies to pre-arrest silence. See also State v. Rowland, 234 Neb. 846, 452 N.W.2d 758 (1990); State v. Easter, 130 Wash.2d 228, 922 P.2d 1285 (1996); cf. People v. Herr, 868 P.2d 1121 (Colo.App.l993)(any comments by a prosecutor regarding a defendant’s pre-arrest silence should be avoided). Permitting the use of silence in the prosecution’s case-in-chief penalizes the exercise of the right against self-incrimination by commenting upon the failure to speak. See Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965)(Fifth Amendment forbids both comments by the prosecution on the accused’s refusal to testify at trial and instructions by the court that such silence is evidence of guilt); Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964)(Fifth Amendment guarantees the right of a person to remain silent, unless he or she chooses to speak in the unfettered exercise of his or her own will, and to suffer no penalty for such silence).

Allowing the substantive use of such silence would also substantially impair the policies behind the privilege: our society’s unwillingness to subject those suspected of crime to the dilemma of self-accusation, perjury, or contempt; the preference for an accusatorial rather than an inquisitorial system of criminal justice; the fear that self-incriminating statements will be elicited by inhumane treatment and abuses; the sense of fair play which dictates a fair state-individual balance by requiring that the state shoulder the entire burden of proof; respect for the inviolability of the human personality and of the right to privacy; distrust of self-deprecatory statements; and the view that the privilege, while sometimes a shelter for the guilty, is often a protection for the innocent. See Murphy v. Waterfront Commission, 378 U.S. 52, 84 S.Ct. 1594,12 L.Ed.2d 678 (1964), overruled, on other grounds by United States v. Balsys, 524 U.S. 666, 118 S.Ct. 2218, 141 L.Ed.2d 575 (1998).

If pre-arrest silence were admissible for substantive purposes, a defendant could not avoid the introduction of past silence by refusing to testify. Thus, a defendant would be under pressure to waive the privilege against self-incrimination, either upon first contact with police or later at trial, to explain the prior silence. And, unlike its use for impeachment, use of silence in such an instance would lessen the prosecution’s burden of proving each element of the crime. See Combs v. Coyle, supra.

In addition, unlike its use for impeachment, the use of pre-arrest silence as substantive evidence of guilt does not enhance the reliability of the criminal process of truth-seeking because it is ambiguous. See Combs v. Coyle, supra, 205 F.3d at 285 (there are many reasons why a defendant may remain silent before arrest, such as knowledge of Miranda rights or fear that his or her explanation may not be believed); Cox v. People, 735 P.2d 153 (Colo.l987)(silence in the ordinary sense means a forbearance from speech or standing mute on a particular matter and for this reason often may be inherently ambiguous).

Therefore, we conclude that the use of pre-arrest silence when the defendant does not testify impermissibly burdens the privilege guaranteed by the Fifth Amendment and thus is inadmissible in the prosecution’s casein-chief as substantive evidence of guilt or sanity. No evidentiary inference of consciousness of guilt or sanity can trump a Fifth Amendment light. See Coppola v. Powell, supra.

Here, the prosecution elicited information about defendant’s silence and referred to it on numerous occasions. In its opening statement, the prosecution noted that defendant “doesn’t say anything” in response to paramedics’ questions about what had happened. It noted that, when defendant got to the hospital, the emergency room nurse asked her what had happened and she did not respond, but gave the nurse her name and told her whether she was allergic to medication.

The prosecutor then told the jury that a detective came to the hospital after the shooting to interview defendant. The prosecutor stated, “[T]he police didn’t have a clue what happened in the apartment. They thought [defendant] was a victim. [The] detective ... asked [defendant] ‘did anyone break in there?’ There was no immediate response.”

As its second witness at trial, the prosecution called one of the first officers at the scene. The officer stated that defendant had told him her name, the victim’s name, and her age. He stated, “[W]henever I would ask any other questions regarding how did you get injured, how did the other person get injured, trying to get suspect information, she would not answer ... she would immediately clam up.” The prosecutor then went over repeatedly in detail the questions that defendant did not answer.

The prosecution also called a firefighter who testified that defendant would not respond when other people asked her questions at the scene. It also called a police technician who testified that defendant answered questions concerning her occupation and her dominant arm, but did not respond to questions about what happened or whether she knew who had done this to her.

The prosecution also called the interviewing detective. He testified that defendant declined to answer whether someone had entered the apartment and shot her and that she did not respond to a question whether she had shot herself. The prosecutor asked the detective if it seemed to him that defendant could hear his questions. The detective responded, “I eventually asked her if she understood what I was asking her, and she responded to that question by saying she didn’t want to make a statement at this time because she might say something wrong.” He also testified that defendant was different from other people he had interviewed who were later found insane, because “she is alert, understands what I am asking, but doesn’t want to respond or refuse[s] to respond.”

The prosecution also called two emergency room nurses, who testified that defendant would look away when asked what happened and would “seemingly choose not to tell” on several occasions. One nurse also noted that defendant did not respond to the emergency room physician’s question concerning what had happened.

In its closing, the prosecution argued:

What is normal? What is the normal reaction for someone to answer [what happened]? You have no memory. You wake up. Someone you love, you see the one you love is dead. Are you going to remain silent when someone asks you what happened? Or do you shoot yourself in the chest? And someone ask[s] you what happened, are you going to remain silent?

Finally, in its rebuttal argument, the prosecution again mentioned defendant’s silence, reminding the jury that the emergency room nurse had stated that defendant answered nearly every question except those about what had happened. The prosecutor then stated, “[I]nstead of saying I don’t know or I don’t remember, are you telling me what happened, she just turned her head. She knew what happened.”

We conclude that this evidence and comment violated defendant’s Fifth Amendment rights.

C.

We reject the People’s argument that this case is closely akin to United States v. Davenport, 929 F.2d 1169 (7th Cir.1991), and that its holding should be followed here.

In Davenport, two defendants gave a version of the events in an attempt to foreclose further investigation by the government, but then refused to answer questions about the details of that version of events. The court commented that the privilege against self-incrimination is not a privilege to attempt to gain an advantage in the criminal process by selective disclosure followed by an assertion of a right to remain silent. It held that, once the defendants started down the “self-exculpation road,” they could not evade questions concerning their original version of events.

Here, however, defendant did not initially make a statement about what had happened and then later choose not to speak. Further, she did not try to exculpate herself with one version of events and then later give a different version.

Accordingly, we reject this argument in this factual setting. However, we do not express an opinion concerning the application of the Davenport rationale in other factual settings.

D.

Errors in the admission of evidence, even of constitutional dimension, do not require reversal of a criminal conviction if the errors are harmless beyond a reasonable doubt. A constitutional harmless error analysis differs from a general harmless error analysis. Under a harmless error standard, reversal is required only if the error affects the substantial rights of the defendant. See People v. Garcia, 28 P.3d 340 (Colo.2001). Under a constitutional harmless error standard, reversal is required unless the court is confident beyond a reasonable doubt that the error did not contribute to the guilty verdict. See Blecha v. People, 962 P.2d 931 (Colo.1998).

The constitutional harmless error test is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. Bernal v. People, 44 P.3d 184 (Colo.2002).

To determine whether such an error is harmless, an appellate court must examine the facts of the case to determine whether the error affected its outcome. Topping v. People, 793 P.2d 1168 (Colo.1990). In making that determination, we consider the entire record, including the jury instructions and the evidence and arguments presented at trial. See Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999); People v. Harlan, 8 P.3d 448 (Colo. 2000). We may consider the use to which the prosecution puts the evidence of silence, the party who elected to pursue the line of questioning, the quantum of other evidence of guilt, the intensity and frequency of the reference, and the trial court’s opportunity to grant a motion for mistrial or to give curative instructions. See United States v. Massey, 687 F.2d 1348 (10th Cir.1982); see also People v. Rivera, 968 P.2d 1061 (Colo.App.1997)(not every reference to a defendant’s silence requires reversal; determining factors are whether the improper remarks were used by the prosecution as a means of creating an inference of guilt and whether the prosecution argued that defendant’s silence constituted an implied admission of guilt).

Here, it was undisputed that defendant killed the victim. Thus, the primary issue at trial was defendant’s sanity and culpable mental state.

Given the evidence cited above, we conclude that the admission of defendant’s pre-arrest silence under the circumstances of this case cannot be considered harmless error. The prosecution’s references to defendant’s silence were not isolated, but were pervasive throughout the trial and were used to prove that defendant was sane, had the intent to kill, and acted after deliberation. And, although the trial lasted four weeks and there was independent evidence of defendant’s premeditation and planning, the expert testimony as to defendant’s mental state and sanity at the time of the shooting was contradictory. Cf. Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986)(use of the accused’s silence after receiving Miranda warnings as evidence of sanity violated due process principles); People v. Galimanis, 765 P.2d 644 (Colo.App.l988)(same). Thus, we cannot say with fair assurance that the prosecution’s repeated references throughout the trial to defendant’s silence did not influence the jury’s verdict. See People v. Rodgers, 756 P.2d 980 (Colo.l988)(if there is a reasonable possibility that the defendant could have been prejudiced, the error cannot be harmless beyond a reasonable doubt). Consequently, we must reverse defendant’s conviction and remand for a new trial. See People v. Cobb, 962 P.2d 944 (Colo.1998)(when error is of constitutional dimension and not harmless beyond a reasonable doubt, defendant’s conviction must be reversed).

In view of this determination, we need not address defendant’s argument that the use of her pre-arrest silence violated her due process right to fundamental fairness or that such evidence was irrelevant under People v. Quintana, 665 P.2d 605 (Colo.1983).

II.

Because it is likely to arise upon retrial, we next address defendant’s contention that the trial court erred when it allowed the prosecution to impeach defendant’s psychiatric expert with a written transcript of another judge’s findings regarding the expert’s credibility in. a different case. We conclude that the introduction of this hearsay evidence violated defendant’s right to confront the witnesses against her.

The hearsay evidence consisted of a judge’s finding that the opinion of defendant’s psychiatric expert in the sentencing phase of another case

will receive no credibility whatsoever by this court. He came up with facts that are not facts. He created facts. He looked at everything in the light most favorable to the defendant. He was not an objective third party evaluator in court. His credibility with the court is very low.

When the prosecutor asked the expert witness if it was true that the court made those findings, the witness acknowledged the court’s statement.

A.

The right of criminal defendants to confront witnesses is guaranteed by the United States and Colorado constitutions. The right of confrontation generally requires that the prosecution present evidence through live testimony, giving the defendant the opportunity to cross-examine. The purposes of the right of confrontation are to prevent conviction by affidavit, to permit cross-examination as a tool for testing the witness’ statements and recollections, and to allow the jury to judge the demeanor of the witness and thereby better assess credibility. California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (19Y0); People v. Dement, 661 P.2d 675 (Colo.1983).

The Confrontation Clause and the hearsay rule and its exceptions protect similar, but not identical interests. Accordingly, the Confrontation Clause may be violated even though statements are admitted under a recognized exception to the hearsay rule. California v. Green, supra; see also United States v. Oates, 560 F.2d 45 (2d Cir.1977); People v. Farrell, 34 P.3d 401 (Colo.2001).

Otherwise admissible hearsay is generally subject to two requirements for admission under the Confrontation Clause. First, the prosecution must either produce or demonstrate the unavailability of the declarant whose statement it wishes to use. After the prosecution proves unavailability, it must then demonstrate that the statement possesses particularized guarantees of trustworthiness. This second requirement may be met by a showing that the statement falls within a firmly rooted hearsay exception. Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); Blecha v. People, supra.

In federal constitutional jurisprudence, the requirement of unavailability is qualified. See United States v. Inadi, 475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986)(unavailability is not always required); Ohio v. Roberts, supra. However, the Colorado Supreme Court, while acknowledging the limitations placed on the two-step analysis in federal jurisprudence, has continued to apply both requirements pursuant to the Colorado Constitution. Blecha v. People, supra; People v. Dement, supra; see also Bernal v. People, supra.

The only exception to unavailability recognized in-Colorado occurs when the utility of trial confrontation is remote, as when the hearsay evidence is not crucial to the case and is cumulative of other testimony that the defendant had an opportunity to cross-examine. People v. Dement, supra. We conclude that the hearsay evidence in this case was important to the prosecution’s case and was not cumulative. Accordingly, the prosecution was required to meet the unavailability requirement.

Here, the prosecution failed to produce the declarant as a witness, nor did it demonstrate his unavailability. To the contrary, the prosecution stated on the record that the declarant was available to testify. Further, the trial court did not find that the declarant was unavailable. Accordingly, because the evidence was introduced through hearsay despite the fact that the declarant was available to testify, the admission of the evidence violated the confrontation clause of the Colorado Constitution, article II, § 16.

The People nevertheless argue that the failure to demonstrate unavailability is of no moment because defendant indicated that she might call the declarant as a witness. However, the burden of demonstrating unavailability is squarely on the prosecution, which must make a good faith effort to obtain the declarant’s presence as a witness. Ohio v. Roberts, supra; People v. Dement, supra. The disadvantage suffered by a criminal defendant because of the prosecution’s failure to call the declarant as a witness is not ameliorated by affording the defendant an opportunity to call that person. United States v. Oates, supra.

Our , analysis is not altered by the fact that the hearsay evidence was not offered during the prosecution’s case-in-chief, but rather to impeach a defense witness. No distinction is observed for Confrontation Clause purposes between substantive evidence and impeachment evidence. See California v. Green, supra; Gaitan v. People, 167 Colo. 395, 447 P.2d 1001 (1968).

Accordingly, the comí; erred in allowing the introduction of this evidence.

In the circumstances of this appeal, we do not reach the issue of the impropriety of calling a judge to testify as to his opinion of a witness’ credibility in a prior case.

III.

Defendant’s final contention is that the trial court erred when it allowed certain evidence that she argues was the product of a warrantless search and seizure of her car. Even assuming, without deciding, that the seizure was illegal, we nevertheless conclude that the evidence was properly admitted pursuant to the inevitable discovery exception to the exclusionary rule.

While the exclusionary rule generally operates to suppress evidence that is unconstitutionally obtained, certain exceptions allow reception of the tainted evidence. These exceptions include inevitable discovery. People v. Schoondermark, 759 P.2d 715 (Colo.1988).

Under the inevitable discovery exception, evidence initially discovered in an unconstitutional manner may be received if it inevitably would have been obtained lawfully. In applying this exception, the court focuses on whether the evidence would have been discovered as a matter of course if independent investigations were allowed to proceed. The court must be convinced that the evidence would have been discovered, not that it might or could have been discovered. People v. Burola, 848 P.2d 958 (Colo.1993).

Here, information obtained independently both before and after the seizure of defendant’s car revealed that the victim’s wound was not consistent with suicide, and there was evidence that defendant had shot the victim and then moved the body. There were no signs of forced entry in the apartment. There was evidence that defendant’s gunshot wounds were self-inflicted. The police also learned independently of the nature of the relationship between defendant and the victim, that the victim had attempted to end his relationship with defendant, and that defendant was distraught over the breakup. Defendant had refused to provide information about how the incident happened. In a search of the victim’s apartment pursuant to a warrant, police had found the handgun used in the shooting and a note giving next-of-kin information for both defendant and the victim. The police were unable to locate defendant’s car at the scene.

All of this information was obtained independently from the seizure of defendant’s car, and much of it was recited in the application for a later warrant to search the car. We are convinced, therefore, that defendant’s car would have been seized and searched and the evidence introduced at trial would have been found, even if an illegal seizure had never occurred, had the independent investigation been allowed to proceed. For that reason, we conclude that the trial court did not err in admitting the evidence discovered as a result of the search and seizure of defendant’s car.

The judgment is reversed, and the case is remanded for a new trial consistent with the views expressed in this opinion.

Judge DAVIDSON and Judge NIETO concur.


source: Caselaw Access Project

author: Judge METZGER.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff Appellee, v. Chad BARTON, Defendant Appellant.
    No. 01CA0215.
    Colorado Court of Appeals, Div. I.
    May 8, 2002.
    Rehearing Denied Aug. 1, 2002.
    Certiorari Denied Nov. 18, 2002.

      Ken Salazar, Attorney General, Cheryl Hone, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    P. Arthur Tague, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge METZGER.

Defendant, Chad Barton, appeals the judgment entered on a jury verdict finding him guilty of second degree kidnapping. He specifically challenges the trial court’s order denying his motion for judgment of acquittal. We affirm.

Defendant was charged with robbery, first degree aggravated motor vehicle theft, and second degree kidnapping. The robbery charge was dismissed, and a jury found defendant guilty of second degree aggravated motor vehicle theft. However, the jury was unable to agree on the kidnapping charge, and, without objection by either party, the trial court declared a mistrial. Defendant was retried on that charge, and the jury found him guilty. This appeal followed.

Defendant contends the trial court erred by ruling that § 16-10-108, C.R.S. 2001, as applied to him, did not unconstitutionally deny him due process of law as guaranteed by the Fifth and Fourteenth Amendments. We disagree.

Section 16-10-108 provides in pertinent part: “The verdict of the jury shall be unanimous.”

Defendant relies on In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068,1073, 25 L.Ed.2d 368, 375 (1970), which held that “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Then, relying on Dickerson v. United States, 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000), which held that a judicially recognized due process requirement may not be vitiated by a legislative act, he argues that applying § 16-10-108 to require a unanimous not guilty verdict deprives him of his right to due process. He asserts that the correct application of § 16-10-108 should have resulted in an acquittal after the jury in his first trial was unable to agree unanimously that he was guilty of the kidnapping charge. We reject this argument.

It is true that due process requires a finding of guilt beyond a reasonable doubt before a defendant can be convicted of a crime. In re Winship, supra. However, the Constitution does not guarantee a defendant a unanimous verdict of either guilty or not guilty. Indeed, the Supreme Court has upheld, on due process grounds, a statutory scheme that authorized the defendant’s conviction of a crime on the vote of only nine of the twelve jurors, expressly noting: “[T]his Court has never held jury unanimity to be a requisite of due process of law.” Johnson v. Louisiana, 406 U.S. 356, 359, 92 S.Ct. 1620, 1623, 32 L.Ed.2d 152, 157 (1972). Therefore, defendant’s due process argument must fail. See also Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978).

We note that, if defendant were entitled to a judgment of acquittal after the jury deadlock in the first trial, it would follow that the second trial would be barred by double jeopardy.

However, in United States v. Perez, 22 U.S. (9 Wheat.) 579, 579-80, 6 L.Ed. 165, 165 (1824), Justice Story, wilting for a unanimous Court, explained that a second trial is not barred:

The question, therefore, arises, whether the discharge of the jury by the Court from giving any verdict upon the indictment, with which they were charged, without the consent of the prisoner, is a bar to any future trial for the same offence. If it be, then he is entitled to be discharged from custody; if not, then he ought to be held in imprisonment until such trial can be had. We are of opinion, that the facts constitute no legal bar to a future trial. The prisoner has not been convicted or acquitted, and may again be put upon his defence. We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.

This interpretation has been followed consistently by both state and federal courts. See, e.g., Richardson v. United States, 468 U.S. 317, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984); see generally John E. Theuman, Annotation, Former Jeopardy as Bar to Retrial of Cñminal Defendant After Original Tñal Court’s Sua Sponte Declaration of a Mistrial — State Cases, 40 A.L.R.4th 741 (1985).

Thus, neither defendant’s due process rights nor the prohibition against double jeopardy was violated in this case.

The judgment and order are affirmed.

Judge ROTHENBERG and Judge KAPELKE concur.


text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Alan BELGARD, Defendant-Appellant.
    No. 01CA0330.
    Colorado Court of Appeals, Div. V.
    May 9, 2002.
    Certiorari Denied Nov. 18, 2002.

      Ken Salazar, Attorney General, Julia A. Thomas, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.
    Forrest W. Lewis, P.C., Forrest W. Lewis, Leonard M. Chesler, P.C., Leonard M. Chester, Denver, CO, for DefendanL-Appellant.
   Opinion by

Judge CASEBOLT.

Defendant, Alan Belgard, appeals the order denying his second Crim. P. 35(b) motion for reduction of sentence. We affirm, but remand for correction of the mittimus.

In 1998, defendant was convicted of six felonies, including three crimes of violence. The court imposed the minimum sentence authorized under the crime of violence statute for these offenses, a total of thirty-six years in the custody of the Department of Corrections (DOC).

Defendant filed a timely Crim. P. 35(b) motion for reduction of sentence pursuant to § 16-ll-309(l)(a), C.R.S.2001, which permits the court to modify an otherwise mandatory crime of violence sentence in cases that involve exceptional, unusual, and extenuating circumstances. The court found that such circumstances existed and reduced defendant’s sentence to a total of eighteen years in the custody of the DOC.

A division of this court affirmed the judgment of conviction and the modified sentence. People v. Belgard, (Colo.App. No. 98CA1967, Apr. 6, 2000)(not selected for official publication).

Defendant then filed another timely Crim. P. 35(b) motion in the trial court, seeking further reduction of his sentence pursuant to § 16-ll-309(l)(a). Concluding that § 16-ll-309(l)(a) does not authorize more than one sentence reduction, the trial court denied the motion, and this appeal followed,

Defendant contends that the trial court erred in denying his second motion for reduction of sentence. He arg-ues that, when read together, Crim. P. 35(b) and § 16-11-309(l)(a) permit more than one sentence reduction so long as the Crim. P. 35(b) motion is timely filed. We disagree.

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

Our task in construing a statute is to ascertain and give effect to the intent of the General Assembly. To determine that intent, we look first to the plain and ordinary meaning of the statutory language. People v. District Court, 713 P.2d 918 (Colo.1986). When the language is clear and unambiguous, the statute must be construed as written, without resort to interpretive rules and statutory construction. People v. Zapotocky, 869 P.2d 1234 (Colo.1994).

If, however, the statutory language lends itself to alternative constructions, and its intended scope is unclear, a court may apply other rules of statutory construction to determine which alternative construction is in accordance with the objective sought to be achieved by the legislation. People v. Terry, 791 P.2d 374 (Colo.1990).

A statute must be read and considered as a whole and should be interpreted so as to give consistent, harmonious, and sensible effect to all its parts. People v. District Court, supra. An interpretation that renders a particular clause meaningless should be avoided. People v. Terry, supra.

Section 16-ll-309(l)(a) provides in pertinent part that violent offenders must be sentenced to a term within the aggravated range,

except that, within ninety days after he has been placed in the custody of the department of corrections, the department shall transmit to the sentencing court a report on the evaluation and diagnosis of the violent offender, and the court, in a case which it considers to be exceptional and to involve unusual and extenuating circumstances, may thereupon modify the sentence.

From the plain language of this statute, we conclude that the General Assembly intended to authorize only one sentence reduction by the court, after its receipt of the diagnostic report filed by DOC upon the defendant’s placement there. See People v. Williams, 908 P.2d 1157 (Colo.App.l995)(§ 16-11-309(l)(a) authorizes the court to modify defendant’s DOC sentence based on the diagnostic report). Indeed, the statute provides that, once the diagnostic report is filed, the court may “thereupon” modify the sentence. The clear import is that, because only one diagnostic report is contemplated and filed, there is only one opportunity to modify the sentence when that report is received. To construe the statute as permitting more than one reduction would, in our view, render the diagnostic report requirement meaningless.

Because there is no ambiguity in the statute, we necessarily reject defendant’s assertion that the rule of lenity applies. See People v. Pierrie, 30 P.3d 816 (Colo.App.2001)(rule of lenity is applied only to resolve unyielding statutory ambiguity). See also People v. Wiedemer, 852 P.2d 424 (Colo.1993)(rule of lenity may not be applied to defeat the evident intention of the legislature).

We also reject defendant’s assertion that more than one sentence reduction is permitted when Crim. P. 35(b) and § 16-11-309(l)(a) are read together. Multiple sentence reductions are permitted under Crim. P. 35(b), see People v. Arnold, 907 P.2d 686 (Colo.App.1995), but only if the sentence is reduced to a term within the statutory limits. See People v. Smith, 971 P.2d 1056, 1060 (Colo.1999). However, when, as here, a mandatory minimum sentence is reduced once pursuant to § 16-ll-309(l)(a), no further reductions are permitted under Crim. P. 35(b) because the resulting sentence would be outside the statutory limits. Cf. People v. Williams, supra (trial court may rule on a defendant’s Crim. P. 35(b) motion if the court has not already reduced the mandatory sentence for violent crime on its own motion).

Finally, we note that the mittimus here does not reflect the mandatory parole period required by § 18-l-105(l)(a)(V)(A) and (E), C.R.S.2001. Accordingly, on remand the trial court is directed to amend the mittimus to reflect that defendant is required to serve a five-year mandatory parole period following his release from prison. See Craig v. People, 986 P.2d 951 (Colo.1999).

The order is affirmed, and the case is remanded for correction of the mittimus.

Judge DAVIDSON and Judge NIETO concur.


author: Judge WEBB.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Scott CAMPBELL, Defendant-Appellant.
    No. 01CA0446.
    Colorado Court of Appeals, Div. II.
    May 9, 2002.
    Rehearing Denied June 6, 2002.
    Certiorari Granted Nov. 25, 2002.

      Ken Salazar, Attorney General, Peter J. Cannici, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Thomas K. Carberry, Denver, Colorado, for Defendanb-Appellant.
   Opinion by

Judge WEBB.

Defendant, Scott Campbell, appeals the judgment of conviction entered following his guilty plea to possession of a controlled substance. He also appeals the sentence imposed. We affirm.

Police officers who were investigating two empty cars parked in a no-parking area stopped defendant to determine whether he owned one of the cars. Defendant told the officers that he did and, upon further questioning, led the officers to an area where he and three companions had been sitting. The officers found a box containing cocaine, two vials of liquid, and hypodermic needles.

The officers then conducted a pat-down search of defendant and discovered marijuana and a marijuana pipe. After being advised of his rights, defendant told the officers that he had been using cocaine. Upon searching defendant at the police station, the officers found a hypodermic syringe and a switchblade in his pockets.

Defendant was charged with possession of an illegal weapon and several drug-related crimes, including illegal use of a controlled substance, simple possession of a controlled substance, and distribution of a controlled substance.

Defendant’s companions were also arrested. They told the officers that the cocaine belonged to defendant and that he had offered to let them use it. Two of defendant’s companions later pleaded guilty to possession of a controlled substance (a class one misdemeanor) and received deferred judgments and sentences in exchange for their agreement to testify against defendant. The People dismissed the charges against defendant’s third companion.

Defendant filed various pretrial motions. Although defendant did not specifically argue that the unlawful possession statute, § 18-18 — 405(l)(a), C.R.S.2001, violates equal protection guarantees, the People responded to the motions as if he had.

Before the trial court ruled on the motions, the parties entered into a plea agreement whereby defendant pleaded guilty to possession of a controlled substance, and the People agreed to dismissal of the remaining charges. The plea agreement provided that, upon ruling on defendant’s motions, the trial court would determine whether the offense to which he pleaded guilty was a class four or a class five felony and that either party could appeal the trial court’s ruling.

At the sentencing hearing, the trial court rejected defendant’s equal protection challenge to the statute, concluded that the offense was a class four felony, and denied all other motions. The court then sentenced defendant to ten years in prison.

I.

Defendant contends that the statutory scheme contained in the possession of a controlled substance statute, § 18-18-405, C.R.S.2001, and the unlawful use of a controlled substance statute, § 18-18-404, C.R.S.2001, violates equal protection principles. We note that in People v. Warren, 55 P.3d 809 (Colo.App. 2002), a division of this court rejected a similar argument, and we do likewise here.

Equal protection of the laws is guaranteed by both the Fourteenth Amendment and art. II, § 25 of the Colorado Constitution. People v. Mozee, 723 P.2d 117 (Colo.1986). Under the Colorado Constitution, if a criminal statute sets different penalties for identical conduct, a person subject to the harsher penalty is denied equal protection unless reasonable differences exist between the proscribed behaviors. Compare People v. Richardson, 983 P.2d 5 (Colo.1999), with United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979).

The statutory classification of crimes must be based on differences that are real in fact and reasonably related to the general purpose of the criminal legislation. People v. Mumaugh, 644 P.2d 299 (Colo.1982). However, the General Assembly may impose greater penalties for acts that it perceives to have graver social consequences, even if the differences are only a matter of degree. People v. Gonzales, 973 P.2d 732 (Colo.App.1999).

Defendant first argues that § 18-18-405 violates equal protection because it classifies simple possession of a controlled substance as a class four felony, while § 18-18-404 classifies use of a controlled substance as a class five felony. Defendant contends that use necessarily includes possession, yet the “lesser” offense of possession carries a harsher penalty. We are not persuaded.

In People v. Cagle, 751 P.2d 614 (Colo.1988), the supreme court rejected this argument, holding that “use” and “possession” are two separate offenses. “Possession of a controlled substance does not necessarily involve use.... [A person] does not use [a controlled substance] until he ingests [it].” People v. Cagle, supra, 751 P.2d at 620. Consequently, the statutory classification is based on real differences.

Further, penalizing possession more harshly than use is justified because, as long as one has possession of a controlled substance, he or she has the capability to distribute or dispense it. Because one who possesses a controlled substance poses a greater threat to the public peace, health, and safety, the imposition of a more severe sanction is justified. People v. Cagle, supra.

Defendant argues that we must revisit the question because, he contends, People v. Villapando, 984 P.2d 51 (Colo.1999), effectively overruled People v. Cagle. We do not agree.

The defendant in Villapando was charged with both use and possession of a controlled substance based solely on a toxicology report that showed marijuana residue in his system. The trial court dismissed the possession charge, relying on the statement in People v. District Court, 964 P.2d 498, 501 (Colo.1998) (District Court I), that “proof of the elements of the unlawful use offense does not establish the elements of the unlawful possession offense.” The supreme court held that, because of the limited nature of a preliminary hearing, the trial court had erred in dismissing the possession charge after having found probable cause for the use charge.

The supreme court went on to say that “while an individual may unlawfully possess a controlled substance without voluntarily using it, it is simply not feasible for an individual to voluntarily use a controlled substance without also possessing it.” People v. Villa-pando, supra, 984 P.2d at 54. In this regard, the court observed, “Thus, our conclusion that the statutory scheme analyzed in District Court I comports with the requirements of equal protection principles is incorrect.” People v. Villapando, supra, 984 P.2d at 54. However, in the prior paragraph the court cited People v. Cagle, supra, with approval. Hence, we cannot read Villapando as overruling Cagle.

In addition to the fact that neither District Court I nor Villapando was decided on equal protection grounds, the factual predicate for the equal protection arguments in both of these cases — no evidence of possession beyond the evidence of use — is not before us. See People v. McKenzie, 169 Colo. 521, 528, 458 P.2d 232, 235 (1969)(rejecting equal protection argument where record included evidence of possession), overruled in part on other grounds by People v. Lowe, 660 P.2d 1261 (Colo.1983). Here, in contrast, defendant specifically acknowledged at the provi-dency hearing that his “physical possession” of drugs was “separate from mixing it up and putting it in a syringe and injecting it in [his] leg and separate from offering it to [his] friends.”

This factual difference defeats defendant’s equal protection argument. Here, because the drugs possessed were not the drugs used, the two offenses are distinct. They would not be distinct only where all of the drugs possessed were used, in which event the evidence of use would not support a prosecution for possession. Cf. Patton v. People, 35 P.3d 124 (Colo.2001)(because possession and manufacture of a controlled substance are distinct offenses, criminal liability for both does not offend double jeopardy protections, unless they are based on the same incident). We interpret Villapando as recognizing that the particular facts, not rigid application of the strict elements test, should have defined the equal protection analysis in District Court I.

Defendant next argues that, because those charged with using a controlled substance can obtain treatment and the suspension of criminal proceedings without consent of the district attorney, while those charged with possession require such consent for the same benefits, the statutory scheme violates equal protection. We disagree.

Even if a defendant is found guilty of use of a controlled substance, treatment and suspension of proceedings are not automatic. Rather, that determination rests in the court’s discretion. See People v. Drake, 983 P.2d 135 (Colo.App.1999). Thus, no violation of equal protection exists on that basis.

We reject defendant’s argument that treatment and suspension of the criminal proceedings should not depend on whether drugs were discovered in the person’s bloodstream or in his or her pocket. As stated in People v. Cagle, supra, this distinction is precisely the point. Those who possess controlled substances can distribute them to others; those who use controlled substances cannot.

Finally, defendant attacks Cagle’s recognition of societal dangers inherent in possession by contending that before relying on this rationale, the People should be required to charge and prove possession with intent to distribute. However, prosecutorial discretion to charge one or both of two distinct offenses has been held constitutional. People v. Haymaker, 716 P.2d 110 (Colo. 1986).

In sum, because the cocaine defendant used and the cocaine he possessed were different, the record does not support his assertion that he should have been charged only with use, and not also with possession. Accordingly, we reject his argument that the statutory scheme violates equal protection.

II.

Defendant also contends that his plea was not knowingly and voluntarily entered because at the providency hearing, the court did not explain the meaning of the terms “knowingly” and “possession” and thus did not adequately advise him regarding the elements of the offense. We disagree.

To satisfy the requirements of due process, the record as a whole must show that the defendant understood the critical elements of the crime to which he or she pleaded guilty and that the plea was knowing and voluntary. Lacy v. People, 775 P.2d 1 (Colo.1989); Waits v. People, 724 P.2d 1329 (Colo.1986).

Before accepting a guilty plea, a trial court must explain the critical elements of the offense “in terms which are understandable to the defendant.” People v. District Court, 868 P.2d 400, 403 (Colo.1994).

The degree of explanation required depends on a number of factors, including the nature and complexity of the offense, the defendant’s personal characteristics (such as intelligence), and the defendant’s representation by counsel. When the crime is relatively simple and the elements are not “so technical in nature as to be beyond the understanding of persons of normal intelligence,” the reading of the information is an acceptable method of advising a defendant of the nature of the offense. People v. Drake, 785 P.2d 1257, 1269 (Colo.1990)(internal quotations omitted)(implicitly concluding that the term “knowingly” is readily understandable to persons of normal intelligence); see also Lacy v. People, supra.

Here, although the providency court did not read the information to defendant, it reminded him of the factual basis for the charges during the following colloquy:

THE COURT: [According to the police officers, they] had a discussion with you and at some point in that discussion you stated that you and your friend were using cocaine by injection.
There was other evidence presented [at a previous hearing] from the police officers who had interviewed the other three people who were there that night. They stated that the cocaine was yours and that you had bought the cocaine and that you had used it and offered other people the opportunity to use it.
Now, the important part of that hearing for purposes of this hearing [is] that there was testimony that you were in possession of, meaning actual physical control of, cocaine on that evening. And so what I need to hear from you is whether you agree ... that you had actual physical control over some cocaine of some amount and that you knew that you had it. Do you agree that occurred?
THE DEFENDANT: Just a moment, Your Honor.
(Defendant conferred with counsel.)
DEFENSE COUNSEL: If I can have just a moment, Judge.
THE COURT: Okay. Are you all ready? THE DEFENDANT: Yes, Your Honor.
THE COURT: So ... what is the answer to my question? My question was do you agree that on [the day of the offense] ... THE DEFENDANT: Yes.
THE COURT: ... that at a time when you knew what you were doing, you were in actual physical possession of some amount of cocaine?
THE DEFENDANT: Yes.
THE COURT: And that’s separate from mixing it up and putting it in a syringe and injecting it in your leg and separate from offering it to your friends. None of that is before the Court at the moment. I am just asking you whether you were in physical possession of some amount of cocaine on that evening.
THE DEFENDANT: Yes, Your Honor. THE COURT: Okay. Now, that — it’s a very simple charge, and that’s what it means. On [the date of the incident] at a time when you knew what you were doing and understood what was going on around you, you were in possession of a Schedule II Controlled Substance; that is, cocaine.

The court also explained the constitutional challenges to the statutes that defendant made in his motions, and defendant indicated that he understood.

The court then invited defendant to consult with his attorney before proceeding, but defendant indicated that there was no need to do so and assured the court that his attorneys had been “very thorough [in] briefing [him] as to what [he was] doing.” The court determined that defendant had attended college, and when asked whether he had “any trouble understanding anything” the provi-dency court told him, defendant responded that he had not.

Based on this record, we reject defendant’s claim that the trial court’s advisement was inadequate and that he did not understand the meaning of the terms “knowingly” and “possession,” or that he was confused about the difference between simple possession and possession with intent to distribute. See People v. Stephens, 837 P.2d 231 (Colo.App.l992)(defendant was adequately apprised of the nature of the charge where the prosecution read information in court, defendant’s attorney had discussed the matter with the defendant, and the defendant acknowledged that he understood the charge).

Contrary to defendant’s contention, the fact that he conferred with counsel following the court’s advisement regarding the elements of the offense, but before he told the court he understood the advisement, does not require that we reach a different result. Defendant did not suggest to the court that counsel had contradicted the court’s advisement and did not request clarification from the court regarding either the “knowingly” or “possession” elements of the offense or regarding the difference between simple possession and possession with intent to distribute. The court’s advisement was clear, and defendant cannot now claim that he was unaware of that element and would not have pleaded guilty if he had been. Cf Craig v. People, 986 P.2d 951 (Colo.l999)(noting that defendant confirmed at the providency hearing that he understood the written plea documents and did not express confusion or request clarification from the court regarding the claimed differences between the written and oral plea advisements).

Moreover, to the extent defendant claims insufficiency of evidence that he possessed cocaine other than the cocaine he used, and that he thus had a defense to the possession charge, he waived that claim when he entered his guilty plea. See People v. Sandreschi, 849 P.2d 873 (Colo.App.1992).

III.

We likewise reject defendant’s contentions that no aggravating evidence supported the imposition of an aggravated range sentence and that his sentence is disproportionate both to his crime and to the disposition of his codefendants’ cases.

A.

Sentencing is by its very nature a discretionary function. Because the trial court has greater familiarity with a defendant and the circumstances of the case, the trial court is accorded wide latitude in its decisions on such matters. People v. Fuller, 791 P.2d 702 (Colo.1990). A trial court’s sentencing decision will not be disturbed absent a clear abuse of discretion. People v. Watkins, 684 P.2d 234 (Colo.1984).

In exercising its sentencing discretion, a trial court must consider the nature and elements of the offense, the character and rehabilitative potential of the offender, any aggravating or mitigating circumstances, and the public interest in safety and deterrence. Section 16 — 11—101(2)(a), C.R.S.2001; People v. Piro, 701 P.2d 878 (Colo.App.1985).

The court may not place undue emphasis on any one of these factors to the exclusion of the others. People v. Piro, su-pm. The fact that a sentencing court finds aggravating factors to be more compelling than any arguably mitigating factors, however, does not constitute an abuse of discretion or indicate that the court failed to consider evidence of mitigation. People v. Hernandez-Luis, 879 P.2d 429 (Colo.App.1994).

We reject defendant’s argument that the sentence imposed constitutes an abuse of discretion because the trial court overemphasized aggravating factors and did not give sufficient consideration to arguably mitigating factors, particularly his claimed rehabilitative potential. The record reflects that the trial court considered defendant’s evidence of mitigation, including his long-standing addiction to drugs, his bipolar disorder, and the statements made by both his father and his attorney at the sentencing hearing indicating that they had found a private, in-patient rehabilitation facility for defendant.

The court also considered defendant’s extensive criminal history, his several prior convictions for drug-related offenses, and the charges in his previous cases involving violent crimes. The court also noted defendant’s failure to overcome his addiction, despite having been convicted of drug crimes before and witnessing the deaths of both his wife and his girlfriend as a result of drug overdoses. The court found that a lengthy sentence was appropriate based on these aggravating factors and that none of the arguably mitigating evidence justified a more lenient sentence.

We also reject defendant’s contention that the trial court should not have considered evidence regarding the overdose deaths of his wife and his girlfriend. A trial court may consider unusual aspects of a defendant’s character, past conduct, and habits and other factors consistent with a pattern of conduct that may suggest a danger to society. People v. Phillips, 652 P.2d 575 (Colo.1982).

In its findings, the court noted that defendant was with both women when they used the drugs that killed them, did not seek help for one of them after it was apparent that she had overdosed, and failed to seek treatment for his own addiction after witnessing two drug-related deaths. Thus, the court considered the evidence not because it demonstrated that defendant was somehow responsible for the deaths, but because the deaths highlighted his failure to take his addiction seriously. This analysis suggests that, despite the availability of an in-patient treatment program, defendant was unlikely to respond to yet another opportunity for treatment.

Under these circumstances, the trial court’s consideration of the challenged evidence was within its discretion. The court did not, as defendant suggests, blame him for the deaths. And, because the record shows no connection between the court’s sentencing decision and defendant’s gender, we reject his claim that the court’s consideration of the evidence was “an extraordinary sexist act.”

Moreover, even if the court’s consideration of the drug overdose deaths was questionable, reversal is not warranted because other evidence in the record supports the sentence imposed. See People v. Broga, 750 P.2d 59 (Colo.l988)(where sentencing court finds several factors justifying a sentence, only one of those factors need be legitimate to support court’s decision). We ' conclude the record shows that the trial court would have imposed the same sentence, even if it had not considered the challenged factor. See People v. Young, 987 P.2d 889 (Colo.App.1999).

Finally, the record does not support defendant’s assertion that, by imposing an aggravated range sentence, the trial court punished him on the basis of his status as a drug addict.

Based on our review of the record, we find no abuse of discretion in the sentence imposed. It is within the range required by law, is based on appropriate considerations as reflected in the record, and is factually supported by the circumstances of the case. See People v. Fuller, supra. And, because there is ample support in the record for the sentencing court’s decision, we will not disturb it on review. See Rocha v. People, 713 P.2d 350 (Colo.1986); People v. Warren, 200 Colo. 110, 612 P.2d 1124 (1980).

B.

We also reject defendant’s proportionality challenge to his sentence.

The constitutional prohibition against cruel and unusual punishment does not require strict proportionality between the crimes committed and the sentence imposed. Instead, it forbids only extreme sentences that are “grossly disproportionate” to the crime. People v. Mershon, 874 P.2d 1025, 1030 (Colo.1994). Thus, the threshold proportionality review measures the relationship between the nature and number of offenses committed and the severity of the sentence imposed.

Under the narrow proportionality review applicable where, as here, the offense is serious, a reviewing court need not compare the defendant’s sentence with sentences imposed on other criminals in the same jurisdiction or with the sentences imposed for the commission of the same crime in other jurisdictions, unless the threshold analysis of the crime committed and the sentence imposed “leads to an inference of gross disproportion-ality.” People v. Hayes, 923 P.2d 221, 229 (Colo.App.1995); see People v. Merchant, 983 P.2d 108 (Colo.App.1999).

Despite recognition of the aggravating factors discussed above, including past violent offenses, the trial court did not sentence defendant to the maximum allowable term under the sentencing statutes. See § 18 — 1— 105(l)(a)(V)(A), C.R.S.2001 (presumptive range of sentences for class four felonies is two to six years); § 18-1-105(6), C.R.S.2001 (aggravated range of sentences for class four felonies is seven to twelve years). Making a threshold comparison, we conclude that defendant’s sentence is not disproportionate to the severity of his crime.

Although this conclusion obviates the need for further inquiry, we also reject defendant’s contention that his sentence was impermissibly disproportionate to the dispositions received by his codefendants. Sentencing is individualized; no rule requires that codefendants must receive similar sentences. People v. Hayes, supra. Here, defendant provided cocaine to his companions. They merely used it.

The judgment and sentence are affirmed.

Judge PLANK and Judge JONES concur.


author: Judge STERNBERG.

text:
    John L. LIVINGSTON and Westland Marketing, Inc., Plaintiffs-Appellants, v. U.S. BANK, N.A., Defendant-Appellee.
    No. 01CA0605.
    Colorado Court of Appeals, Div. A.
    May 9, 2002.
    Certiorari Denied Dec. 16, 2002.

      Dyer & Shuman, LLP, Kip B. Shuman, John M. Martin, Jeffrey A. Berens, Denver, Colorado, for Plaintiffs-Appellants.
    Dorsey & Whitney, LLP, Tucker K. Traut-man, R. Stephen Hall, Sandra L. Potter, Denver, Colorado, for Defendanh-Appellee.
   Opinion by

Judge STERNBERG.

Plaintiffs, John L. Livingston and West-land Marketing, Inc., appeal the order denying class certification of their action against defendant, U.S. Bank, N.A. We affirm.

In 1999, an employee of defendant, whose responsibility included generating new business, purchased a database of names, addresses, and facsimile (fax) numbers for approximately 8000 people and businesses in the Denver metropolitan area. In March 1999, defendant contracted with a third party, Absolute Communications Solutions, Inc. (ACS), to send a fax advertisement to approximately 1500 people. Acting on behalf of defendant, in May 1999, ACS sent an additional 1400 fax advertisements, and in January 2000, ACS sent more than 2300 fax advertisements to various people and organizations, including plaintiffs.

Plaintiffs then brought this action asserting claims under the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. § 227, which prohibits the transmission of unsolicited fax advertisements. Plaintiffs sought class certification of the action pursuant to C.R.C.P. 23.

The trial court denied plaintiffs’ request for certification for two reasons: The class was not properly identified, and, even if it was, individual issues would predominate over common issues. Upon plaintiffs’ motion, the court certified its order as final under C.R.C.P. 54(b). See Levine v. Empire Savings & Loan Ass’n, 192 Colo. 188, 557 P.2d 386 (1976)(order denying class certification is appealable).

Plaintiffs appeal, contending that the trial court erred in denying class certification. We do not agree.

C.R.C.P. 23(a) lists four requirements that plaintiffs must satisfy before a class may be certified: (1) the class is so numerous that joinder of all members is impracticable (“nu-merosity”); (2) there are questions of law or fact common to the class (“commonality”); (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class (“typicality”); and (4) the representative parties will fairly and adequately protect the interests of the class (“adequacy of representation”).

In addition, plaintiffs must also satisfy at least one of the requirements listed in C.R.C.P. 23(b). In this action, plaintiffs sought certification under C.R.C.P. 23(b)(3), which requires that (1) questions of law or fact common to the members of the class predominate over any questions affecting only individual members (“predominance”), and (2) a class action is superior to other available methods for the fair and efficient adjudication of the controversy (“superiority”).

The burden of establishing the requirements for class certification is on the party seeking it, here plaintiffs. Villa Sierra Condo. Ass’n v. Field Corp., 787 P.2d 661 (Colo.App.1990). A trial court’s determination whether an action should be accorded class treatment may not be set aside unless it constitutes clear error. Ammons v. Am. Family Mut. Ins. Co., 897 P.2d 860 (Colo. App.1995).

The purpose of the TCPA is to “protect the privacy interests of residential telephone subscribers by placing restrictions on unsolicited, automated telephone calls to the home and to facilitate interstate commerce by restricting certain uses of facsimile (fax) machines and automatic dialers.” Int’l Sci. & Tech. Inst, Inc. v. Inacom Communications, Inc., 106 F.3d 1146, 1150 (4th Cir.l997)(quoting S. Rep. No. 102-178, at 1 (1991)). It prohibits, inter alia, the use of “any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine.” 47 U.S.C. § 227(b)(1)(C). “Unsolicited advertisement” is defined as “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s prior express invitation or permission.” 47 U.S.C. § 227(a)(4).

The TCPA creates a private right of action for violations of its provisions and provides that for each violation, a person is entitled to the greater of the actual damages or $500 in statutory damages. 47 U.S.C. § 227(b)(3)(B); Foxhall Realty Law Offices v. Telecomms. Premium Servs., 975 F.Supp. 329 (S.D.N.Y.1997), affd, 156 F.3d 432 (2d Cir.1998).

Here, plaintiffs sought certification of their claims and defined the class as follows: “All persons who received U.S. Bank facsimile advertisements sent on U.S. Bank’s behalf by ACS, who did not, prior to receiving the facsimile advertisements, contact U.S. Bank or ACS to request that they be added to the facsimile advertisement recipient database.”

The trial court found that plaintiffs’ definition of the class subsumed the very legal and factual issue that would be at the heart of the merits of the case, that is, whether the advertisements were unsolicited within the meaning of the TCPA. Accordingly, the court found that the definition failed to identify the class properly.

The court further concluded that even if the definitional problem could be corrected, plaintiffs did not satisfy the predominance requirement of C.R.C.P. 23(b)(3). The court found that the question whether any particular fax recipient gave “prior express invitation or permission” would have to be decided on an individual basis and therefore would overwhelm, let alone predominate over, the common issues. The court determined that individual inquiries into the facts and circumstances of each recipient’s invitation and permission would have to be made.

The trial court’s determination finds support in two federal cases that have considered whether class certification was appropriate for TCPA claims involving allegedly unsolicited facsimile advertisements. See Kenro, Inc. v. Fax Daily, Inc., 962 F.Supp. 1162 (S.D.Ind.1997); Forman v. Data Transfer, Inc., 164 F.R.D. 400, 403 (E.D.Pa.1995).

In both Kenro and Forman, the courts denied class certification because the suits would require inquiry into whether the transmitted advertisements were unsolicited. The court in Kenro noted that it would be required “to conduct individual inquiries with regard to each potential class member in order to determine whether each potential class member had invited or given permission for transmission of the challenged fax advertisements.” Kenro, supra, 962 F.Supp. at 1169. Similarly, in Forman, the court held that individual questions predominated over common ones. The court noted that “the essential question of fact that each potential plaintiff must prove is whether a specific transmission to its machine was without express invitation or permission on its part.” Forman, supra, 164 F.R.D. at 404. But see Hooters of Augusta, Inc. v. Nicholson, 245 Ga.App. 363, 537 S.E.2d 468 (2000)(summari-ly upholding trial court’s class certification in a TCPA claim involving unsolicited fax advertisements).

Because C.R.C.P. 23 is virtually identical to Fed.R.Civ.P. 23, cases interpreting the federal rule are persuasive authority regarding the Colorado rule. State v. Buckley Powder Co., 945 P.2d 841 (Colo.1997). Hence, we follow the reasoning of Kenro and Fotman.

Here, the trial court observed that determination whether a recipient had given “pri- or express invitation or permission” involves an inquiry at the class-member level. Because the TCPA does not require consent to be given in writing, and it may be given orally, determination of this issue would involve examining whether each potential class member had invited or given permission for the transmission of the fax. Thus, as the trial court noted, the absence of written documents in defendant’s files would not establish the issue of consent.

Therefore, because individual issues predominated over common issues, the court did not err in denying class certification. See Ammons v. Am. Family Mut. Ins. Co., supra.

In light of our determination, we need not address plaintiffs’ contention that the trial court erred in its alternative holding that they failed to identify the class properly.

The order is affirmed.

Judge DAILEY and Judge CRISWELL concur.

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


author: Judge TAUBMAN.

text:
    SCHOOL DISTRICT NO. 1, CITY AND COUNTY OF DENVER, Petitioner-Appellee, v. Sherdyne CORNISH, Respondent-Appellant.
    No. 01CA2043.
    Colorado Court of Appeals, Div. IV.
    May 9, 2002.
    Certiorari Denied Nov. 18, 2002.

      Semple, .Miller & Mooney, P.C., Patrick B. Mooney, Wendy J. Shea, Denver, Colorado, for Petitioner-Appellee.
    Jonathan L. Miller, Boulder, Colorado, for Respondent-Appellant.
   Opinion by

Judge TAUBMAN.

Respondent, Sherdyne Cornish, appeals the order of petitioner, School District No. 1 in the City and County of Denver (Board), terminating her employment as a nonproba-tionary teacher pursuant to the Teacher Employment, Compensation, and Dismissal Act of 1990 (Act), § 22-63-101, et seq., C.R.S. 2001. We affirm.

In March 2001, the superintendent of the Denver school district filed with the Board written charges against Cornish recommending that she be dismissed from her employment as a mathematics teacher at Thomas Jefferson High School (TJHS) for neglect of duty, insubordination, and other just and good cause.

Cornish requested an evidentiary hearing before an impartial hearing officer. After a five-day hearing, the hearing officer issued a thorough opinion, concluding that the school district had met its burden to prove that Cornish’s performance was deficient as charged and recommending that she be dismissed.

Specifically, the hearing officer concluded that Cornish was insubordinate because she refused to teach the approved mathematics curriculum; refused to distribute, to all of her students, the textbook designated by the TJHS administration; and refused to comply with a request to provide lesson plans to the TJHS principal.

The hearing officer further found that Cornish neglected her duties by failing to teach the approved math curriculum and distribute the textbooks and by allowing her teaching license to lapse for a period of almost four months.

Finally, he found other just and good cause for her dismissal in that Cornish knew she did not have a valid teaching license, conducted classes without holding a valid license, and failed to inform the TJHS administration that her teaching license had not been renewed.

The hearing officer rejected Cornish’s assertions that the traditional math curriculum and textbooks were outdated arid did not provide standards-based instruction and that the information she supplied to the principal complied with the request for lesson plans.

In October 2001, the Board endorsed the hearing officer’s findings and recommendations and adopted a resolution dismissing Cornish. This appeal followed.

I. Standard of Review

Initially, we note that the Board contends that the record, for purposes of our review, consists only of the hearing officer’s findings and recommendations. Cornish did not address the standard of review in her opening brief. We agree with the Board’s contention.

The Act’s provisions govern our review. Under the Act, a teacher may be dismissed for any of various grounds, including neglect of duty, insubordination, or other good and just cause. Section 22-63-301, C.R.S.2001. The Act provides that a school district’s chief administrative officer must file a written recommendation for dismissal with the Board, based upon one or more of the grounds specified in § 22-63-301. Section 22-63-302(2), C.R.S.2001. A teacher who has been the subject of a superintendent’s recommendation of dismissal may request a hearing before an impartial hearing officer. Section 22-63-302(3), C.R.S.2001. The hearing officer is charged by the statute with hearing evidence, reviewing exhibits, and making written findings of fact. The hearing officer is to recommend to the Board that the teacher either be retained or dismissed. Section 22-63-302(8), C.R.S.2001. The Board must then review the hearing officer’s findings of fact and recommendation and enter its own order either to retain the teacher, place the teacher on a one-year probation, or dismiss the teacher. Section 22-63-302(9), C.R.S. 2001.

A teacher dissatisfied with the Board’s decision may appeal to this court pursuant to § 22-63-302(10), C.R.S.2001. This court reviews the record before the hearing officer to determine whether the action of the Board was arbitrary, capricious, or legally impermissible. Section 22-63-302(10)(d), C.R.S. 2001; Adams County Sch. Dist. No. 50 v. Heimer, 919 P.2d 786, 792 (Colo.1996).

Furthermore, on appellate review, when neither party questions whether the hearing officer’s findings were supported by substantial evidence, the record is limited to those findings plus the hearing officer’s recommendation. In that event, “the focus of the court of appeals must shift to a determination of whether the board’s decision is arbitrary, capricious, or legally impermissible in light of the hearing officer’s findings of fact.” Adams County Sch. Dist. No. 50 v. Heimer, supra, 919 P.2d at 794.

Finally, we note that school boards have primary responsibility for the hiring and firing of teachers in their school districts. While a board’s decisions are subject to judicial review, a reviewing court may not freely substitute its judgment for that of a board concerning the harm inflicted on the school community by a teacher’s conduct. Bd. of Educ. v. Flaming, 938 P.2d 151, 158 (Colo.1997); see also Adams County Sch. Dist. No. 50 v. Heimer, supra, 919 P.2d at 794 (noting courts are ill-equipped to make factual findings based on a cold record, and the legislative intent of providing an impartial hearing for teachers would be undermined if an appellate court were free to substitute its own findings for those of the hearing officer).

Here, Cornish did not assert in her opening brief that the hearing officer’s findings were not supported by substantial evidence. Her challenge to the adequacy of the findings in her reply brief was made too late. See People v. Czemerynski, 786 P.2d 1100 (Colo.1990)(issues not raised in an appellant’s opening brief will not be considered when raised for the first time in the reply brief); cf. Snider v. Town of Platteville, 75 Colo. 589, 227 P. 548 (1924)(ordinarily, points raised for the first time in a reply brief will not be considered unless argument is made in response to the answer brief). Therefore, we conclude that the record before us consists solely of the hearing officer’s formal findings and recommendations. See Adams County Sch. Dist. No. 50 v. Heimer, supra.

II. Dismissal

We reject Cornish’s arguments that the Board improperly dismissed her based on issues related to copyright infringement, a standards-based math curriculum, and her teaching certification.

A. Lesson Plans

At the outset, we note that the Board points out that Cornish does not challenge the hearing officer’s conclusion that she was insubordinate when she failed to supply lesson plans. We agree termination may be upheld on this basis alone.

Insubordination is the willful or intentional refusal to obey a reasonable order of a lawful superior on a particular occasion. Bd. of Educ. v. Flaming, supra, 938 P.2d at 158.

Even a single instance of a teacher’s refusal to follow a prior directive can amount to insubordination justifying dismissal under § 22-63-301. See Ware v. Morgan County Sch. Dist. No. RE-3, 748 P.2d 1295, 1300 (Colo.l988)(under § 22-63-116 of the Teacher Tenure Act, insubordination includes even a particular instance of willful disobedience of a reasonable order); see also Bd. of Educ. v. Flaming, supra, 938 P.2d at 158 (citing with approval insubordination standard articulated in Ware v. Morgan County Sch. Dist. No. RES, supra)-, Adams County Sch. Dist. No. 50 v. Heimer, supra, 919 P.2d at 794 (noting similarities between the Act and the Teacher Tenure Act and concluding that standard of review under Teacher Tenure Act remains viable under the Act).

Here, the hearing officer concluded Cornish did not comply with the principal’s request that Cornish provide her with lesson plans. The hearing officer noted that Cornish had the ability to comply with the request, but that the lesson plans she provided to the principal for review were not well organized despite the principal having given Cornish several formats for lesson plans. He found that in light of Cornish’s refusal to teach the TJHS math curriculum, the principal’s request for lesson plans was reasonable and that the information Cornish supplied was designed to confuse rather than illuminate. He determined that Cornish’s technical compliance with the request was tantamount to a refusal. Finally, he noted the perils of insubordination in the school environment by stating, “It would be virtually impossible to productively conduct any endeavor if those implementing the actions would not only challenge, but actively resist, every decision on the grounds that in their opinion that decision was not the best.”

Cornish challenges the’ hearing officer’s findings of fact related to her lesson plans for the first timé in her reply brief; therefore, we will not consider her contentions. See People v. Czemerynski, supra. Accordingly, we conclude that the hearing officer’s findings clearly support the Board’s ultimate conclusion that Cornish was insubordinate. Thus, that; finding alone is a sufficient basis for affirming the Board’s decision. See Feldewerth v. Joint Sch. Dist. 28-J, 3 P.3d 467 (Colo.App.1999)(noting a teacher may be dismissed for any one of the grounds in § 22-63-301).

Therefore, the Board’s decision to terminate Cornish for insubordination for failing to provide lesson plans was not arbitrary, capricious, or legally impermissible.

B. Copyright Infringement

Cornish contends that she was not insubordinate and did not neglect her duties when she refused to distribute the textbooks because she would have violated federal copyright laws in making photocopies to supplement the outdated books. We decline to address this contention.

Cornish raises this issue for the first time on appeal. Because it was never presented to or ruled upon by the hearing officer, we will not address it. See Goodwill Indus, v. Indus. Claim Appeals Office, 862 P.2d 1042, 1045 (Colo.App.l993)(issues not raised before a hearing officer are not preserved for appellate review).

C. Standards-Based Math Curriculum

Cornish argues that she did not neglect her duties by failing to teach a math curriculum that, in her view, violated the state mandated standards. We disagree.

Neglect of duty occurs when a teacher fails.to carry out his or her obligations and responsibilities in connection with classroom and other school sponsored activities. Bd. of Educ. v. Flaming, supra, 938 P.2d at 159.

Here, the hearing officer found that Cornish adamantly refused to teach the math curriculum adopted by TJHS and that her insubordination in this area was “remarkable and extraordinary.” He noted that there was ample testimony that the adoption of the TJHS curriculum was a considered decision. Additionally, he found that there was competent testimony that the textbooks approved by TJHS were standards-based with some supplementation. Indeed, after Cornish expressed her opinion that the textbooks were outdated, the TJHS administration reviewed the books and again concluded that they adequately covered the standards. Even Cornish admitted that she could have provided standards-based instruction using the textbooks with some supplementation.

The hearing officer found that because of Cornish’s failure to follow the curriculum, her students did not receive complete and proper instruction in mathematics. He also determined that she failed to fulfill her classroom duties and obligations. These failures amounted to neglect of duty. Thus, we conclude that the Board did not err when it dismissed Cornish on this basis.

D. Teaching Certification

Cornish next contends that she did not neglect her duties when she allowed her teaching certificate to lapse and that the loss of her certification did not amount to other good and just cause for dismissal. We disagree.

In interpreting a similar provision in the Teacher Tenure Act, the supreme court noted, “Nothing in the statutes suggests that expiration of a teacher’s certificate held by a person employed as a tenure teacher automatically results in loss of right to employment.” Frey v. Adams County Sch. Dist. No. 14, 804 P.2d 851, 854 (Colo.1991). However, the court concluded that the term “other good and just cause” was sufficiently broad to encompass issues surrounding the expiration of a teacher’s certificate. Frey v. Adams County Sch. Dist. No. II, supra, 804 P.2d at 855.

Here, TJHS placed Cornish on administrative leave from November 2, 2000, to January 23, 2001, because of her failure to implement the math curriculum. Her license lapsed on November 18, 2000. The hearing officer found that: (1) Cornish knew she did not hold a valid teacher’s license when she returned from administrative leave; (2) she failed to inform the TJHS administration that her license had not been renewed; (3) she continued to teach classes without a current license; (4) she had not taken steps to renew her license; and (5) she knowingly concealed the fact that she did not have a valid license. The hearing officer concluded that by allowing her license to lapse, Cornish jeopardized her ability to teach and conduct classes and that this further demonstrated her failure to carry out her teaching duties. Finally, he determined that her failure to notify the TJHS administration that she did not hold a valid teacher’s license satisfied the additional inquiry into surrounding circumstances required by Frey, supra.

These facts sufficiently demonstrated “other good and just cause” for dismissal. Thus, we conclude that the Board did not err when it dismissed Cornish on this basis.

III. Other Issues Raised on Appeal

To the extent that Cornish raises additional issues, such as her contention that the principal’s directives violated her First Amendment rights and the Denver Classroom Teachers Association (DCTA) agreement, again, we decline to consider issues not raised before the hearing officer and raised for the first time on appeal in a reply brief. See People v. Czemerynski, supra.

IV. Board’s Request for Attorney Fees

The Board contends that we should award it attorney fees pursuant to § 22-63-302(10)(e), C.R.S.2001. We agree.

A. Standard for Award of Attorney fees

As relevant here, § 22 — 63—302(10)(e) provides:

[I]f the board’s decision to dismiss the teacher is affirmed by the court of appeals, the court of appeals shall determine whether the nonprevailing party’s appeal or defense on appeal lacked substantial justification. If the court of appeals determines that the nonprevailing party’s appeal or defense on appeal lacked substantial justification, the court of appeals shall determine the amount of and enter a judgment against the nonprevailing party for reasonable attorney fees and costs incurred on appeal to the court of appeals.

(Emphasis added.)

Because no reported Colorado appellate decision has interpreted the phrase “lacked substantial justification” in this context, we must look elsewhere for the meaning of that term. See Southard v. Miles, 714 P.2d 891, 898 (Colo.l986)(defining the phrase “mental incompetent” in medical malpractice statute according to definition in statute governing the care and treatment of the mentally ill); cf Bertrand v. Bd. of County Comm’rs, 872 P.2d 223, 228 (Colo.l994)(the interpretation of terms in one statute by reference to the terms used in an unrelated statute and in a different context is an unreliable means of ascertaining legislative intent).

Section 13-17-102(2), C.R.S.2001, provides for an award of attorney fees against an attorney or party who asserts a claim or defense that “lacked substantial justification.” In that context, “lacked substantial justification” means substantially frivolous, substantially groundless, or substantially vexatious. Section 13-17-102(4), C.R.S.2001. A claim or defense is frivolous if the proponent can present no rational argument based on the evidence or the law to support it. W. United Realty, Inc. v. Isaacs, 679 P.2d 1063 (Colo.1984); E-470 Pub. Highway Auth. v. Jagow, 30 P.3d 798 (Colo.App.2001).

We conclude that the meaning of “lacked substantial justification” in § 13-17-102(2) and (4) should apply here. Both § 13-17-102 and § 22-63-302(10)(e) address the standard for awarding attorney fees to a prevailing party. Further, applying the definition from § 13-17-102 here assists in developing a uniform interpretation of this statutory standard for awarding attorney fees in Colorado. Therefore, we adopt the “lacked substantial justification” definition from § 13-17-102(4) and eases interpreting this provision here.

B. Grounds for Award of Attorney fees

For three reasons, we conclude that Cornish’s appeal lacks substantial justification.

First, the hearing officer found multiple grounds for dismissal, any one of which alone could allow us to affirm the Board’s decision. Because Cornish did not challenge the healing officer’s finding and the Board’s decision that her failure to provide lesson plans was insubordinate, we conclude that her appeal, as a whole, lacked any rational argument, based on the evidence or the law, for reversing her dismissal.

Second, because Cornish advanced her copyright infringement, First Amendment, and DCTA agreement arguments for the first time on appeal, we could not consider them, and thus, she lacked any legal basis for raising these issues on appeal. See Artes-Roy v. City of Aspen, 856 P.2d 823, 828 (Colo.l993)(attorney fees awarded pursuant to C.A.R. 38 for, inter alia, raising issues for the first time on appeal).

Third, we conclude that there was no substantial justification for Cornish’s argument that the hearing officer erred in determining that she neglected her duties or was insubordinate by not teaching a standards-based máth curriculum. As noted, Cornish did not cite either the appropriate statutory standard of review for cases brought under the Act- Or that standard as discussed in Adams County School District No. 50 v. Heimer, supra. Nor did she challenge the sufficiency of the evidence in her opening brief. Therefore, our review of the record was limited to the hearing officer’s findings of fact and recommendations.

Based on the record before us, her argument lacks any support in the evidence or the law because the hearing officer expressly determined that the approved textbooks, with some supplementation, provided standards-based instruction. Indeed, Cornish admitted she could provide standards-based instruction by using the recommended pre-algebra textbook and the traditional curriculum adopted by TJHS. Given these factual findings, there was no justifiable legal basis to contest the hearing officer’s conclusion that Cornish’s refusal to distribute the recommended textbooks constituted neglect of duty or insubordination.

Therefore, under § 22-63-302(10)(e), we conclude that the Board is entitled to reasonable attorney fees and costs incurred as a result of this appeal. The Board is instructed to submit to this court, within thirty days of the date that this decision is announced, a request for attorney fees and costs, including any supporting documentation or affidavits. Cornish shall have fifteen days to respond to the Board’s request. The Board shall have ten days to reply.

The order of the Board is affirmed.

Judge MARQUEZ and Judge VOGT concur.