author: Judge DAILEY.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Thomas P. ROGERS, Defendant-Appellant.
    No. 01CA0105.
    Colorado Court of Appeals, Div. II
    Sept. 12, 2002.
    Rehearing Denied Nov. 14, 2002.
    Certiorari Denied May 12, 2003.

      Ken Salazar, Attorney General, Cheryl Hone, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appelliee.
    James Grimaldi, Denver, Colorado, for Defendant-Appellant.

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

   Opinion by

Judge DAILEY.

Defendant, Thomas P. Rogers, appeals the judgment of conviction entered upon jury verdicts finding him guilty of first degree (after deliberation) murder, conspiracy to commit first degree murder, and solicitation of another to commit first degree murder. We affirm.

Defendant's ex-wife was shot to death in the apartment defendant shared with his girifriend. The girlfriend called 911, claiming to have shot the victim in self-defense. Police responding to the seene found only the girlfriend and the victim. The police determined, however, that the physical evidence at the seene was inconsistent with a claim of self-defense.

Investigating officers were aware that defendant had had an acrimonious relationship with the victim because of their divorce and disputes regarding custody of their children. About three hours after the shooting, defendant returned to the apartment. He was arrested after he showed no concern about who had been shot, and the police seized his clothes. He was released that same day.

Eighteen months later, defendant was charged with counts of first degree murder, conspiracy to commit first degree murder, and solicitation of another to commit first degree murder. He was convicted of those charges after a jury trial and sentenced to concurrent prison terms of life, twenty-five years, and twenty-five years.

I. Suppression of Evidence

Initially, defendant contends that the trial court erred in denying his motion to suppress evidence of gunshot residue on his clothing. According to defendant, his eloth-ing was seized illegally because his arrest was not supported by probable cause. We disagree.

"Probable cause to arrest exists when, under the totality of the cireumstances at the time of arrest, the objective facts and cireumstances available to a reasonably cautious officer at the time of arrest justify the belief that (1) an offense has been or is being committed (2) by the person arrested." People v. King, 16 P.3d 807, 813 (Colo.2001).

The probable cause standard represents a necessary accommodation between the individual's right to liberty and the state's duty to enforce the law for the protection of society. People v. Rayford, 725 P.2d 1142, 1146 (Colo.1986). Accordingly, the quantum and quality of information necessary to support a finding of probable cause is significantly less than that required to prove an accused's guilt at trial. People v. Washington, 865 P.2d 145, 147 (Colo.1994).

Probable cause is measured in terms of "probabilities similar to the factual and practical questions of everyday life upon which reasonable and prudent persons act." People v. MacCallum, 925 P.2d 758, 762 (Colo.1996)(quoting People v. Thompson, 793 P.2d 1173, 1175 (Colo.1990)). It takes into account a police officer's experience and training in determining the significance of his or her observations, People v. King, supra, 16 P.3d at 813, and, because it turns on "common-sense conclusions about human behavior," People v. Polander, 41 P.3d 698, 702 (Colo.2001), it may be satisfied even where innocent explanations exist for conduct. See 2 W.R. LaFave, Search and Seigure § 8.2(6), at 70 (3d ed.1996)(probable cause exists if a "succession of superficially innocent events had proceeded to the point where a prudent man could say to himself that an innocent course of conduct was substantially less likely than a eriminal one").

On appeal, while we defer to the trial court's findings of historical fact, we review de novo the issue whether the police had probable cause when they subjected a citizen to a warrantless arrest. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911, 920 (1996); People v. Matheny, 46 P.3d 453, 461 (Colo.2002).

Here, the record reflects that the police knew the following facts when they arrested defendant: (1) the victim was killed in defendant's apartment, purportedly by defendant's girlfriend; (2) the physical evidence indicated that the victim was not shot in self-defense, but rather was shot several times while trying to escape to the far end of the apartment; (3) defendant's girlfriend displayed, in the officer's opinion, an unusually calm demean- or; (4) defendant had an acrimonious relationship with the victim, evidenced, in part, by the domestic violence and harassment calls to which the police had previously responded; (5) defendant had been seen with the girlfriend at the apartment on the afternoon of the shooting; (6) one witness observed, close in time to the shooting, defendant drive out of the apartment complex in a rush; (7) defendant and the victim had previously exchanged custody of their children in the lobby of the police station; (8) on at least two occasions, defendant had waited in the lobby for the victim to arrive, but on the evening of the shooting, defendant entered the police station at about 6:30 pm. and requested verification that he had been waiting outside in the parking lot since 6 p.m.; (9) the victim had been shot around 6 p.m.; and (10) upon returning to the apartment, and after having been informed of a shooting in his apartment, defendant evidenced no concern for who (including his girlfriend) might have been shot.

Looking at the totality of the ciream-stances known to the police at the time of the arrest, we, like the trial court, conclude that the police had adequate grounds to reasonably believe that defendant was eriminally responsible in some manner-as a conspirator, a complicitor, or even a principal-for the death of the vietim. Because defendant's arrest was supported by probable cause, we have no reason to disturb the trial court's ruling.

Finally, inasmuch as they were not raised in the trial court, we decline to consider defendant's assertions that: (1) the trial court's probable cause determination was premised, in part, upon evidence obtained in violation of his constitutionally protected rights to remain silent and to the assistance of an attorney; and (2) because he was released from custody shortly after his arrest, the prosecution was judicially estopped from arguing that his arrest was based on probable cause. See People v. White, 64 P.3d 864 (Colo. not raised in suppression hearing need not be addressed on appeal); People v. Bolton, 859 P.2d 311, 316 (Colo.App.1998)(declining to address judicial estoppel argument not raised in the trial court), overruled on other grounds by Close v. People, 48 P.3d 528 (Colo.2002).

II. Presentment to a Magistrate

Defendant contends that either his case should have been dismissed or evidence should have been suppressed, because he was not brought before a magistrate or judge to receive his Crim. P. 5 advisements until eighteen months after his arrest. We are not persuaded.

Crim. P. 5(a)(1) & (2) require that a person arrested for a felony be taken without unnecessary delay before the nearest available county or district court to be informed of, among other things, the nature of the charges filed against him or her and certain basic rights, such as the right to bail. The purpose of the rule, however, is "to furnish a prophylaxis against abuses in the detention process." People v. Heintze, 200 Colo. 248, 252, 614 P.2d 367, 371 (1980)(emphasis added); see People v. Vigoa, 841 P.2d 311, 317 (Colo.1992); see also People v. Roybal, 55 P.3d 144 (Colo.App.2001).

Because defendant was released from custody the same day he was arrested, he was no longer "in the detention process" or otherwise subject to the potential abuses the rule addresses. The right to bail, for example, was inapposite because he was no longer in custody. Similarly, because no charges had been filed before he was released, defendant could not be informed of them, no plea could be entered, and defendant's statutory speedy trial rights were not implicated.

Finally, to the extent that defendant complains about the lack of assistance of counsel during those cighteen months, we note that the state did nothing during that time to interfere with defendant's ability to obtain counsel on his own.

For these reasons, we conclude that neither dismissal of charges nor suppression of evidence is warranted.

III. Defendant's Reaction to News of the Shooting

Defendant contends that the trial court erred in permitting an officer to express his opinion regarding defendant's ered-ibility on a specific occasion. According to defendant, the officer improperly testified that defendant reacted to news of the shooting in a way that was "strange" and "different than [what the officer was] used to." We are not persuaded.

At trial, defendant objected to the officer's testimony only on grounds of general relevancy. Because he did not object upon the grounds he raises now, we review the trial court's ruling only for plain error. See People v. Kruse, 839 P.2d 1, 3 (Colo.1992).

"Plain error has been defined as an error that is obvious, substantial, and grave, seriously affecting the substantial rights of the accused." Moore v. People, 925 P.2d 264, 268-69 (Colo.1996)(footnote omitted). Ordinarily, plain error exists when, after a review of the entire record, an appellate court concludes with fair assurance that the error so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction. See Moore v. People, supra.

Here, we discern no error, much less plain error, because the witness did no more than produce evidence tending to make defendant's guilt more likely, and innocence less likely, than it would have been without the evidence. See Salcedo v. People, 999 P.2d 833, 840 (Colo.2000)('Evidence of a defendant's actions, demeanor, or appearance at the time he allegedly committed a crime generally is relevant to the defendant's state of mind."); see also State v. Cerce, 22 N.J. 236, 245-46, 125 A.2d 689, 694 (1956)(evi-dence that, when informed of his wife's murder, defendant reacted without any noticeable emotional disturbance admitted to show defendant had knowledge of crime); Hackney v. State, 551 S.W.2d 335, 339 (Tenn.Crim.App.1977)(evidence of "apparent unconcern" for plight of lover indicative of defendant's consciousness of guilt); Ashley v. State, 527 S.W.2d 302, 305 (Tex.Crim.App.1975)(lay opinion about attitude or emotional state of accused admissible).

Consequently, we reject defendant's assertion that CRE 608(a) precludes this evidence. See People v. Wheatley, 805 P.2d 1148, 1148-49 (Colo.App.1990)(mere fact that the prosecution's evidence contradicted the defendant's evidence did not constitute an attack on credibility); People v. Koon, 724 P.2d 1367, 1370 (Colo.App.1986)(expert testimony not inadmissible simply because it incidentally tends to bolster or attack another's credibility).

IV. Pre-Arrest Silence

Defendant next contends that the trial court erred in admitting evidence of, and allowing references in opening statements and closing argument to, his pre-ar-rest invocation of his right to counsel and his right to remain silent. Again, we disagree.

After arriving at the crime seene the night of the shooting, defendant had a brief conversation with an officer; during that conversation, both he and the officer asked questions of one another without receiving answers in return. Defendant then told the officer, "If you are not going to answer my questions, then I'm not going to answer yours without an attorney."

At trial, the prosecution introduced and commented upon evidence of: (1) defendant's conduct, demeanor, and lack of concern during the conversation; and (2) defendant's statement, absent, however, the concluding phrase "without an attorney."

Defendant did not object to the evidence or comments about his statement; and, he did not object on Fifth Amendment grounds to the evidence concerning his conduct, demeanor, and lack of concern on the night of the crime. Ordinarily, then, defendant's new Fifth Amendment contentions would be reviewable only for plain error. See Crim. P. 52(b); People v. Kruse, supra, 839 P.2d at 3. Here, we find no error, much less plain error.

Initially, we note that, to the extent defendant asserts his right to counsel was abridged by reference even to his abbreviated statement, any invocation of that right was made when he was not in custody and, thus, when he had no such constitutional right. See Mirando v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706 (1966)(right to counsel attaches with custodial arrest); People v. Welsh, 58 P.3d 1065 (Colo.App.2002).

With respect to defendant's asserted right to remain silent, the United States Supreme Court has not yet decided whether the Fifth Amendment's privilege against self-incrimination precludes use of a defendant's pre-arrest silence as substantive evidence of guilt. While federal and state appellate courts are fairly evenly divided on this issue, see, e.g., M. Strauss, Silence, 35 Loy. L.A. Rev. 101, 130-41 (2001), a division of this court recently held inadmissible evidence of a defendant's pre-arrest silence in the prosecution's cage-in-chief. See People v. Welsh, supra; see also People v. Herr, 868 P.2d 1121, 1124 (Colo.App.1993)(prosecution should not comment upon a defendant's pre-arrest silence as a means of implying guilt).

We agree that, in some cireum-stances, use of a defendant's pre-arrest silence as substantive evidence of guilt is impermissible, because "[a]n accused's right to silence derives, not from Miranda, but from the Fifth Amendment itself," State v. Easter, 130 Wash.2d 228, 288, 922 P.2d 1285, 1290 (1996), and

[alny time an individual is questioned by the police, that individual is compelled to do one of two things-either speak or remain silent. If both a person's prearrest speech and silence may be used against that person ... that person has no choice that will prevent self-inerimination.

State v. Fencl, 109 Wis.2d 224, 237, 325 N.W.2d 703, 711 (1982).

Turning to the cireumstances of this case, we reject defendant's assertion that Fifth Amendment error occurred when the proge-cution elicited evidence of and commented upon his conduct, demeanor, and lack of concern on the night of the crime. The evidence and comments challenged here referred not to defendant's silence in the face of police questioning, but rather to his failure, while speaking to the police, to show concern even for the welfare of his girlfriend. See United States v. Goldman, 563 F.2d 501, 503 (1st Cir.1977)("A defendant cannot have it both ways. If he talks, what he says or omits is to be judged on its merits or demerits ....")(quoting Vitali v. United States, 383 F.2d 121, 123 (1st Cir.1967)).

We also reject defendant's assertion that his statement, "If you are not going to answer my questions, then I'm not going to answer yours," was an exercise of his Fifth Amendment right to remain silent. In this context, silence "includes the statement of a desire to remain silent, as well as of a desire to remain silent until an attorney has been consulted." Wainwright v. Greenfield, 474 U.S. 284, 295, 106 S.Ct. 634, 640, 88 L.Ed.2d 623, 632 (1986). However, reasonably interpreted, defendant's statement conveyed not a desire to stop speaking to the officer, but rather a conditional offer to speak further with him. Indeed, although it is not entirely clear from the record, it appears that, following his statement, defendant may well have continued asking questions of the officer. Under the cireumstances, then, neither the introduction of the statement, nor the prosecution's remarks with respect thereto, penalized defendant for exercising his constitutional right to remain silent. Cf. People v. Arroya, 988 P.2d 1124, 1129-80 (Colo.1999)(in custodial interrogation setting, to invoke right to remain silent "a suspect must clearly articulate the desire to remain silent so that a reasonable police officer in the cireumstances would understand the suspect's words and conduct to mean that the suspect is asserting her Miranda right to cut off questioning"); People v. Gray, 975 P.2d 1124, 1130 (Colo.App.1997){in custodial interrogation setting, "a defendant's invocation of the right to remain silent must be clear and unequivocal").

Consequently, we conclude that no error occurred here.

V. Victim's Fear of Defendant

Next, defendant contends that the trial court erred in admitting evidence that the victim expressed fear of defendant, asked her brother to move in with her, and took precautionary safety measures such as taking different routes to and from work. Defendant argues the evidence was inadmissible hearsay and irrelevant. We find no basis for reversing on these grounds.

Assuming, arguendo, that all this evidence was hearsay, it was not subject to exclusion under the rule against hearsay. A victim's statements to the effect that she was, at the time, afraid of another fall squarely within the state of mind hearsay exception under CRE 8038 because they refer not to past events or conditions, but to the victim's then existing state of mind. See, e.g., People v. Madson, 638 P.2d 18, 27 (Colo.1981)("[TIhe statement 'I fear X" is direct evidence of the declarant's fear of X."); People v. Cardenas, 25 P.3d 1258, 1263 (Colo.App.2000)(evidence that the vietim had told his sister that he was "getting afraid" of the defendant).

There is, however, some question whether this type of evidence is irrelevant and hence inadmissible when, as here, the victim's state of mind is not directly at issue. See People v. Borrelli, 624 P.2d 900, 903 (Colo.App.1980)(error in admitting evidence of a victim's fear of another when victim's state of mind is not a material issue); cf. People v. Madson, supra, 638 P.2d at 28-29 (not deciding the question).

We need not decide the relevance and admissibility of such evidence here because any error in admitting it was harmless.

A court's erroneous evidentiary ruling will be disregarded as harmless if there is not a reasonable probability that the error contributed to the defendant's conviction. In making this determination, we inquire whether the error substantially influenced the verdict or affected the fairness of the trial proceedings. See generally Salcedo v. People, supra, 999 P.2d at 841.

The problem with using evidence of a vie-tim's fear of another to prove identity, motive, malice, or intent in a homicide case is that the victim's statements would be "used indirectly to infer the defendant's past con-duet (a threat or an assaultive act) from which his future conduct and state of mind are inferred." People v. Madson, supra, 638 P.2d at 29 n. 14.

However, the record here is replete with evidence of defendant's threats against the victim and his convictions for violation of a restraining order, harassment, and domestic violence against the victim; consequently, substantial evidence, independent of that challenged here, existed from which the jury could properly infer defendant's malice and his motive to kill the victim. See People v. Hulsing, 825 P.2d 1027, 1030 (Colo.App.1991). Further, a reasonable jury would likely assume, from the evidence of defendant's threats and prior convictions, that the victim feared him. See State v. Smith, 868 S.W.2d 561, 573 (Tenn.1993)("When one considers the proof of Defendant's previous threats and violent assaults upon the victims, that [one of the victims] would have been afraid of the Defendant is obvious.").

Because the effect of the evidence challenged here was essentially cumulative to that produced by other properly admitted evidence, we conclude that any error in admitting it did not substantially influence the verdict or affect the fairness of trial. See People v. Fuller, 788 P.2d 741, 746-47 (Colo.1990). Accordingly, reversal is not warranted on this ground.

VI. Phone Messages

Defendant contends that the trial court erred by circulating to the jury tran-seripts of phone messages defendant left for the victim in the months before the murder and by allowing the jury unsupervised access to tape recordings of those messages. We are not persuaded.

Defendant did not object to these procedures at trial, and we again apply ordinary plain error review. See Crim. P. 52(b); People v. Gilbert, 12 P.3d 331, 337 (Colo.App.2000).

A. Tramscripts

Accurate transcriptions of sound recordings are admissible to assist the jury in following the recordings while they are played. People v. Gable, 647 P.2d 246, 256 (Colo.App.1982).

On appeal, defendant does not argue that the transcription was inaccurate, but that it impermissibly emphasized the evidence. However, a division of this court has already determined that providing a transcription of a tape recording does not unduly emphasize the evidence because, without it, the jury might otherwise be compelled to replay the tape numerous times to discern its contents. See People v. Coca, 40 Colo.App. 440, 443, 580 P.2d 1258, 1259 (1978).

Accordingly, we conclude that the use of the transcript was not error, much less plain error.

B. Tape Recordings

Although a trial court errs by allowing the jury unsupervised access to video or audio recordings of testimonial out-of-court statements, People v. Montoya, 773 P.2d 623, 626 (Colo.App.1989), no such rule exists with respect to nontestimonial recordings. Those recordings depict the event itself rather than a narration thereof. See People v. Aponte, 867 P.2d 183, 188 (Colo.App.1993)(videotape and transcription of drug transaction); see also People v. Ferrero, 874 P.2d 468, 473 (Colo.App.1993)(no difference between tran-seript and videotape for purposes of this rule).

Here, the transcript and tapes were of hostile and threatening telephone messages defendant left for the victim in the months preceding the murder. Because the messages did not narrate past events, they were nontestimonial in character and thus, could properly be examined by the jury during deliberations without the supervision of the trial court. See People v. Aponte, supra, 867 P.2d at 188-89.

VIL Other Contentions

Finally, we reject defendant's contentions that reversal is required because of: (1) plain error in that the jury was not instructed that, pursuant to § 13-90-101, C.R.S.2001, it could consider evidence of a witness's felony conviction in determining the witness's credibility, see People v. Garcia, 981 P.2d 214, 216 (Colo.App.1998); (2) plain error in that the court did not clarify certain instructions to the jury, see People v. White, supra (because defendant had opportunity to actively participate in preparing the response and ultimately agreed to the response given, he cannot assert error on appeal); and (8) cumulative error, see People v. Rivera, 56 P.3d 1155 (Colo.App.2002)(cumulative effect of errors did not substantially prejudice defendant's right to a fair trial).

Accordingly, the judgment is affirmed.

Judge PIERCE and Judge RULAND,* concur.


source: Caselaw Access Project

author: Judge KAPELKE.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kelley L. BRADBURY, Defendant-Appellant.
    No. 01CA0541.
    Colorado Court of Appeals, Div. I.
    Sept. 12, 2002.
    As Modified on Denial of Rehearing Nov. 7, 2002.
    Certiorari Denied April 28, 2003.

      Ken Salazar, Attorney General, John D. Seidel, Assistant Attorney General, Melissa D. Allen, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, Colorado, for Defendant, Appellant.
   Opinion by

Judge KAPELKE.

Defendant, Kelley L. Bradbury, appeals from the order denying her Crim. P. 35(a) motion for postconviction relief. We affirm.

In 1997, defendant pled guilty to one count of theft, a class four felony. The plea agreement provided that sentencing would be "open."

Because defendant was on bond in connection with other felony charges at the time of her offense, pursuant to § 18-1-105(9.5)(a), C.R.S.2001, the trial court was required to sentence her "to a term of at least the minimum in the presumptive range but not more than twice the maximum term authorized in the presumptive range." The presumptive range for defendant's offense was two to six years, and the trial court sentenced her to an eight-year term of imprisonment in November 1997.

Defendant did not appeal her conviction or sentence, which therefore became final,. In 2001, she filed a "Motion to Correct Illegal Sentence Pursuant to Crim. P. 85(a)," which the trial court denied.

I.

Relying on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), defendant contends that the trial court violated her due process rights by imposing an aggravated range sentence. Specifically, she urges that her sentence is improper because the statutory aggravating factor, her bond status, was not charged in the indictment, submitted to the jury, or proved beyond a reasonable doubt. Because we agree with the People that the rule announced in Apprendi does not apply retroactively to convictions that were already final when the Supreme Court issued its opinion, we find no basis for reversal.

In Apprendi, the defendant pled guilty to possession of a firearm for an unlawful purpose, a crime that carried a potential sentence of five to ten years imprisonment. After the trial court accepted the defendant's plea, but before it imposed the sentence, the prosecution filed a motion to enhance the sentence pursuant to a "hate crime" statute that permitted a sentence of ten to twenty years incarceration if the crime had been committed as a result of racial bias. Following a hearing, the trial court found, under a preponderance of the evidence standard, that the defendant's crime had been motivated by racial bias. The court then sentenced the defendant to twenty years of imprisonment.

The United States Supreme Court reversed, concluding that the New Jersey statutory sentencing scheme was unconstitutional because it allowed an increased penalty based upon a fact neither charged in the charging documents nor submitted to the jury for a finding beyond a reasonable doubt. The Court held: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, supra, 530 U.S. at 490, 120 S.Ct. at 2362-63, 147 L.Ed.2d at 455.

Whether the Supreme Court's holding in Apprendi applies retroactively to convictions that became final before that opinion was announced is an issue of first impression in Colorado.

The leading Supreme Court decision on retroactivity in this context is Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). In Teague, the Court held that a new constitutional rule of criminal procedure will not apply retroactively to cases on collateral review unless the new rule falls within one of two exceptions. Relevant here is the exception permitting "watershed" rules to be retroactively applied. Such rules are those that implicate both the accuracy and fundamental fairness of criminal proceedings, and, in addition, " 'alter our understanding of the bedrock procedural elements' essential to the fairness of a proceeding." Sawyer v. Smith, 497 U.S. 227, 242, 110 S.Ct. 2822, 2831, 111 L.Ed.2d 193, 211 (1990)(quoting Teague and Mackey v. United States, 401 U.S. 667, 693, 91 S.Ct. 1160, 1165, 28 L.Ed.2d 404, 421 (1971) (Harlan, J., concurring)).

All the federal circuit courts of appeals that have addressed the issue have concluded that under the Teague analysis, Apprendi does not apply retroactively to cases on collateral review. See Sustache-Rivera v. United States, 221 F.3d 8 (1st Cir.2000); Forbes v. United States, 262 F.3d 143 (2d Cir.2001); In re Turner, 267 F.3d 225 (3rd Cir.2001); United States v. Sanders, 247 F.3d 139 (4th Cir.2001); In re Clemmons, 259 F.3d 489 (6th Cir.2001); Talbott v. Indiana, 226 F.3d 866 (7th Cir.2000); United States v. Moss, 252 F.3d 993 (8th Cir.2001); Jones v. Smith, 231 F.3d 1227 (9th Cir.2000); Browning v. United States, 241 F.3d 1262 (10th Cir.2001); McCoy v. United States, 266 F.3d 1245 (11th Cir.2001).

While a few reported federal district court decisions reached the opposite conclusion, those holdings would appear to have been either expressly or implicitly overruled by later federal court of appeals decisions within the same circuit. See, e.g., Darity v. United States, 124 F.Supp.2d 355 (W.D.N.C.2000), overruled by United States v. Sanders, supra.

Most state appellate courts that have addressed the issue have similarly held that Apprendi does not apply to collateral post-conviction cases where the conviction and sentence were final when the Supreme Court announced its decision in Apprendi. See Poole v. State, 837 So.2d 885 (Ala.Crim.App.2001); State v. Sepulveda, 201 Ariz. 158, 32 P.3d 1085 (Ariz.Ct.App.2001); People v. Gholston, 332 Ill.App.3d 179, 265 Ill.Dec. 509, 712 N.E.2d 880 (2002); Whisler v. State, 36 P.3d 290 (Kan.2001). But see People v. Beachem, 317 Ill.App.3d 693, 251 Ill.Dec. 308, 740 N.E.2d 389 (2000).

A.

Defendant asserts that the analysis in Teague does not apply and that Apprendi must be given retroactive effect because the Supreme Court did not pronounce a new rule of criminal procedure, but instead merely clarified existing law. We are not persuaded.

In making this argument, defendant relies on Martin Marietta Corp. v. Lorenz, 823 P.2d 100, 113 (Colo.1992). In that civil case, the Colorado Supreme Court indicated that "Itlo establish a new rule of law, a Judicial decision must either overrule clear past precedent on which the litigants may have relied or must resolve an issue of first impression not clearly foreshadowed by prior precedent."

As Justice Erickson pointed out in his concurring and dissenting opinion in Martin Marietta, however, unless they fall within one of the exceptions recognized in Teague v. Lane, supra, new constitutional rules of criminal procedure are not applicable to cases that have become final before the new rules are announced. Martin Marietta Corp. v. Lorenz, supra, 823 P.2d at 119 n. 2 (Erickson, J., concurring in part and dissenting in part).

In Teague v. Lane, supra, the Supreme Court explained that a "new rule" is generally one that "breaks new ground or imposes a new obligation" on the states or federal government or that requires a result "not dictated by precedent existing at the time the defendant's conviction became final." Teague v. Lane, supra, 489 U.S. at 301, 109 S.Ct. at 1070, 108 L.Ed.2d at 349.

We conclude that under either the definition in Teague or that in Martin Marietta, Apprendi established a new rule. The Apprendi Court imposed a new obligation by mandating that a jury, rather than a judge, must decide any facts (other than the fact of a prior conviction) that increase the penalty for a crime beyond the statutory maximum, and must find such facts beyond a reasonable doubt.

Before Apprendi, case law allowed various facts relevant to sentencing, including statutory penalty enhancers, to be determined by a court, rather than a jury, so long as such facts were considered to be sentencing factors as opposed to elements of the offense. See, e.g., United States v. Grimaldo, 214 F.3d 967 (8th Cir.2000)(upholding constitutionality of procedure allowing judges to decide facts that qualified as sentencing factors).

The Apprendi decision had the effect of overriding a widespread practice of allowing judges to decide numerous sentencing factors by a preponderance of the evidence. As such, we agree with the People and the majority of courts in other jurisdictions that Apprendi established a new rule of constitutional criminal procedure. See United States v. Moss, supra; Jones v. Smith, supra; see also Poole v. State, supra (collecting cases).

B.

We also reject defendant's assertion that the Teague analysis should not apply here because Apprendi involved a matter of substantive law, not a procedural rule.

While there appear to be no United States Supreme Court decisions adopting a different analysis for substantive criminal matters, some courts have held that if a new constitutional pronouncement is substantive, it is generally presumed to apply retroactively to cases on collateral review. See United States v. Mandanici, 205 F.3d 519, 525 (2d Cir.2000).

Substantive law encompasses matters such as defining eriminal conduct, while procedural law encompasses "the process by which offenders are brought to justice." Whisler v. State, supra, 36 P.3d at 296 (citing Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), as example of a profound criminal matter that may nevertheless be categorized as procedural).

The Supreme Court in Apprendi focused on the procedural aspects of the New Jersey hate crime statute under consideration:

[Although the constitutionality of basing an enhanced sentence on racial bias was argued in the New Jersey courts, that issue was not raised here. The substantive basis for New Jersey's enhancement is thus mot at issue; the adequacy of New Jersey's procedure is. The strength of the state interests that are served by the hate crime legislation has no more bearing on this procedural question than the strength of the interests served by other provisions of the criminal code.

Apprendi v. New Jersey, supra, 530 U.S. at 475, 120 S.Ct. at 2354, 147 LEd.2d at 445-46 (footnote omitted; emphasis added).

Further, the Court expressly worded its holding in terms of "procedure." Apprendi, supra, 530 U.S. at 497, 120 S.Ct. at 2366, 147 L.Ed.2d at 459.

Every federal appellate opinion that has addressed the issue has concluded that Apprendi establishes a rule of constitutional criminal procedure. See Whisler v. State, supra (collecting cases). Further, defendant has not cited, nor are we aware of, any state appellate opinions concluding that the Apprendi holding is a matter of substantive law.

As defendant points out, some federal district courts have held that Apprendi establishes substantive law and should therefore be applied retroactively. The reasoning in those cases is that the Supreme Court effectively added substantive elements to the criminal statutes at issue. United States v. Hernandez, 137 F.Supp.2d 919 (N.D.Ohio 2001). These decisions, however, would appear to have been effectively overruled by appellate decisions in the respective federal circuits. See In re Clemmons, supra (Apprendi does not apply retroactively unless and until Supreme Court so holds); Forbes v. United States, supra (Apprendi not retroactive on collateral review).

The courts that have concluded the Apprendi holding is procedural rather than substantive have either relied on the language in that opinion quoted above, see, e.g., United States v. Sanders, supra, or have focused on the fact that Apprendi merely concerns the method by which a fact finder addresses sentencing decisions, see Ware v. United States, 124 F.Supp.2d 590 (M.D.Tenn.2000).

We agree with the analysis and holdings in those cases. Accordingly, we too conclude that the Apprendi holding is procedural rather than substantive and that the analysis in Teague v. Lane, supra, thus applies.

C.

We next reject defendant's additional assertion that because the Colorado appellate courts have not yet expressly adopted the Teague analysis, we should decline to do so here.

In determining the retroactive application of a new rule of constitutional criminal procedure, the Colorado courts have "consistently followed the lead of the United States Supreme Court." People v. Timmons, 690 P.2d 213, 215 (Colo.1984). We see no compelling reason to decline to do so here.

D.

Applying the Teague analysis, we now address the issue of Apprendi's retroactivity to cases under collateral review.

As discussed, under Teague, new constitutional rules of criminal procedure cannot be applied retroactively to cases on collateral review unless they fall within one of two exceptions.

The first exception is where the new rule forbids criminal punishment of certain kinds of conduct. That exception is not relevant here. The second exception, as noted, permits "watershed" rules, those which "implicate the fundamental fairness of the trial," to be raised collaterally and applied retroactively. Teague v. Lane, supra 489 U.S. at 312, 109 S.Ct. at 1076, 103 L.Ed.2d at 357.

To be of "watershed" magnitude, a rule must do more than simply break new ground or impose a new obligation on the states or the federal government. The Supreme Court has described such rules as a "small core of rules requiring observance of those procedures that ... are implicit in the concept of ordered liberty." O'Dell v. Netherland, 521 U.S. 151, 157, 117 S.Ct. 1969, 1973, 188 L.Ed.2d 851, 358 (1997)(quoting Graham v. Collins, 506 U.S. 461, 478, 113 S.Ct. 892, 903, 122 L.Ed.2d 260, 276 (1993)).

The Court has repeatedly emphasized the rarity of such watershed rules of procedure and has even stated it is unlikely that many such rules remain undiscovered. Tyler v. Cain, 533 U.S. 656, 662 n. 7, 121 S.Ct. 2478, 2484, 150 L.Ed.2d 632, 645 (2001). Notably, since it announced Teague, the Court has found no new constitutional rules that fall within this second exception. See United States v. Mandanici, supra (identifying "at least eleven" new procedural rules that have not been given retroactive effect by the Supreme Court under the second Teague exception).

In Teague, the Court explained that rules regarding accuracy of the criminal proceeding rise to the "watershed" level only when they derive from the ideal of assuring that a defendant is not incarcerated under a procedure which creates "an impermissibly large risk that the innocent will be convicted." Teague v. Lane, supra, 489 U.S. at 312, 109 S.Ct. at 1076, 108 L.Ed.2d at 857 (emphasis added). The exception therefore applies only to those procedures without which "the likelihood of an accurate conviction is seriously diminished." Teague, supra, 489 U.S. at 318, 109 S.Ct. at 1077, 103 L.Ed.2d at 358.

As most courts have concluded, Apprendi does not alter our basic understanding of the bedrock procedural requirements essential to a fair proceeding. In United States v. Moss, supra, 252 F.3d at 999, the Eighth Circuit Court of Appeals stated that Apprendi "appears no more 'important' to a fair trial" than other rules addressed by the Supreme Court, including that announced in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, (1986), which the Supreme Court declined to apply retroactively in Teague. Further, as the Fifth Circuit Court of Appeals pointed out in United States v. Shunk, 113 F.3d 31, 37 (5th Cir.1997), "one can easily envision a system of 'ordered liberty' in which certain elements of a crime can or must be proved to a judge, not to the jury."

Accordingly, we conclude, as have the vast majority of courts, that Apprendi does not establish a watershed rule to be accorded retroactivity in collateral review proceedings.

Finally, we find nothing in the Supreme Court's opinions in Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), that would either compel or suggest a contrary holding.

In light of our resolution of this issue, we need not address the People's contentions that defendant's claims are time barred under Crim. P. 35(a) and (c) or under §§ 16-5-402 and 18-1-410(1)({)(I1), C.R.S.2001.

IL

Defendant next contends the trial court erred by sentencing her in the aggravated range, because it failed to make specific findings on the record detailing the extraordinary cireumstances for imposing a sentence outside the presumptive sentencing range, as required by § 18-1-105(7), C.R.S. 2001. We find no error.

A trial court imposing a sentence outside the presumptive range must "make specific findings on the record of the case, detailing the specific extraordinary circumstances which constitute the reasons for varying from the presumptive sentence." Section 18-1-105(7); People v. Walker, 724 P.2d 666, 668 (Colo.1986). This requirement is satisfied if the record demonstrates that the sentencing court reasonably explained the sentence imposed, evaluated the essential factors, and considered the evidence supporting the sentence. People v. Walker, supra, 724 P.2d at 669.

Here, the presumptive range for sentencing was two to six years in the Department of Corrections. As discussed, however, under § 18-1-105(9.5)(a), defendant was subject to an aggravated sentence of up to twelve years because at the time she committed the offense, she was on bond for a previous felony for which she was later convicted. The court expressly relied on that statutory sentence enhancing factor and also noted, "when [defendant] gets the opportunity to make it right, she makes it worse."

The court thus stated on the record the specific reasons for sentencing defendant in the aggravated range. We therefore find no error.

The order is affirmed.

Judge METZGER and Judge ROTHENBERG, concur.


author: Judge DAVIDSON.

text:
    COLORADO STATE BOARD OF MEDICAL EXAMINERS, Petitioner-Appellee, v. Sharon R. JOHNSON, M.D., Respondent-Appellant.
    No. 01CA1613.
    Colorado Court of Appeals, Div. III.
    Sept. 26, 2002.
    Rehearing Denied Dec. 12, 2002.
    Certiorari Denied April 21, 2003.

      Ken Salazar, Attorney General, Claudia Brett Goldin, Assistant Attorney General, Denver, CO, for Petitioner-Appellee.
    Sherman & Howard, LL.C., Frederick Y. Yu, Claire E. Douthit, Denver, CO, for Respondent-Appellant.
   Opinion by

Judge DAVIDSON.

In this appeal pursuant to §§ 12-36-119 and 24-4-106(11), C.R.S.2002, respondent, Sharon R. Johnson, M.D., seeks review of the order of the Colorado State Board of Medical Examiners (Board) denying her application for a license to practice medicine in Colorado. We affirm.

Johnson received her medical degree from the American University of the Caribbean (AUC) in Montserrat, West Indies, in 1986, but she received her medical training at other locations. She completed her first two years of coursework at the University of Missouri at Columbia and completed subsequent clinical rotations in the United States in programs approved by the Accreditation Council of Graduate Medical Education (ACGME). She also received more than three years of postgraduate training and board certification in anesthesiology.

In 1999, Johnson applied to the Board for a license to practice medicine in Colorado. Panel A, acting as a subcommittee of the Board, denied the application on the ground that Johnson had not graduated from a medical school approved pursuant to § 12-36-108, C.R.8.2001.

Johnson requested a hearing pursuant to § 24-4-104(9), C.R.S8.2002. After the hearing, the ALJ's initial decision found, inter alia, that Johnson was "essentially a United States' trained medical professional" and concluded that the Board had abused its discretion and that Johnson should be granted a license.

The Board filed exceptions to the initial decision pursuant to § 24-4-105(14)(a)(ID), C.R.S8.2002. After reviewing the initial decision, another subcommittee of the Board, Panel B, issued its final decision. It rejected some of the ALJ's conclusions and denied Johnson's application, essentially on the ground that her training was not equivalent to that provided by an approved school.

On appeal, Johnson contends that the Board improperly substituted its findings of fact for those of the ALJ, arbitrarily and capriciously denied her application, and violated § 12-36-107.6, C.R.S.2002, and Board policies when it did so. We disagree.

Whether Johnson's education, including that at AUC and her postgraduate training, provided qualifications equivalent to those provided by a degree from an approved school is an ultimate conclusion of fact. Accepting the evidentiary findings of the ALJ, the Board was free to reach a different ultimate conclusion, so long as it was supported by the law and substantial evidence in the record and was not arbitrary and capricious. See Lawley v. Dep't of Higher Educ., 36 P.3d 1239 (Colo.2001); Colo. State Bd. of Med. Exam'rs v. McCroskey, 880 P.2d 1188 (Colo.1994).

In determining whether an administrative agency's decision is arbitrary or capricious, the court must determine whether a reasonable person, considering all of the evidence in the record, would fairly and honestly be compelled to reach a different conclusion. If not, no abuse of discretion has occurred and the agency decision must be upheld.

Wildwood Child & Adult Care Program, Inc. v. Colo. Dep't of Pub. Health & Env't, 985 P.2d 654, 658 (Colo.App.1999).

We conclude that the Board properly determined that Johnson did not demonstrate that her medical school education was equivalent to that provided by an approved school. Therefore, a reasonable person would not be compelled to reach the conclusion that she was entitled to a medical license under § 12-36-107.6, and we must uphold the Board's decision.

I.

We first address the relevant substantive and procedural aspects of the application process for a license to practice medicine in Colorado.

The Board may refuse to license an applicant if it determines that the applicant does not possess the qualifications required by the Medical Practice Act (MPA), § 12-836-101, et seq., C.R.S.2002. See § 12-86-116(1)(a), C.R.S$.2002. An application must include "such documents, affidavits, and certificates as are necessary to establish that the applicant possesses the qualifications prescribed by [the MPA]," and the burden of proof is on the applicant. Section 12-86-111(1), C.R.S. 2002.

One qualification required under the MPA is that the applicant have graduated from "an approved medical college, as defined in seetion 12-36-108." Section 12-86-107(2)(b), C.R.S.2002. Section 12-36-108, in turn, defines an "approved medical college" as one that meets the educational standards of the liaison committee on medical education (LCME)], that has been approved by the LCME, or that has been approved by the Board on its own investigation of the school's educational standards and facilities.

However, § 12-86-107.6(1), captioned "Foreign medical school graduates-degree equivalence," provides a limited exeeption for foreign medical school graduates:

For graduates of schools other than those approved by the [LCME] ... the board may require three years of postgraduate clinical training approved by the board. An applicant whose foreign medical school is other than as defined in section 12-86-108 shall be eligible for licensure at the discretion of the board if the applicant meets all other requirements for licensure and holds specialty board certification, current at the time of application for licen-sure, conferred by a regular member board of the American board of medical specialties or the American osteopathic association. The factors to be considered by the board in the exercise of its discretion in determining the qualifications of such applicants shall include the following:
(a) The information available to the board relating to the medical school of the applicant; and
(b) The nature and length of the postgraduate training completed by the applicant.

The Board has adopted a written policy implementing the statutory provisions as they relate to graduates of foreign medical schools. Pursuant to Board Policy 20-5, applicants from foreign medical schools must complete a questionnaire regarding the school's standards and facilities:

If the applicant's answers to the questionnaire are satisfactory and if the Board is not in possession of any derogatory information regarding the medical school, the Board will approve the school for purposes of licensing a specific applicant pursuant to section 12-36-108. If the applicant is Board certified by an ABMS or AOA Specialty Board, approval of the school is not required to license the applicant (Reference section 12-86-107.6). If the applicant affirmatively answers all of the questions on the Board's questionnaire regarding the medical school and if there are no other issues (e., malpractice history, disciplinary history, ete.) which would require Board review, the application does not need to be forwarded to a Board member for special consideration.

An applicant who is denied a license without a hearing may request a hearing before the agency, conducted pursuant to § 24-4-105, C.R.S.2002. Section 24-4-104(9). However, such a hearing is not merely a review of the first panel's license denial, but instead requires that findings of fact and conclusions of law be made based on the evidence presented at the hearing. The initial decision rendered pursuant to such a hearing must include "a statement of findings and conclusions upon all the material issues of fact, law, or discretion presented by the record and the appropriate order, sanction, relief, or denial thereof" Section 24-4-105(14)(a), C.R.S.2002.

If an appeal to the Board is made by filing exceptions to the initial decision, the Board, acting through the subcommittee that did not originally deny the Hcense, may affirm, set aside, or modify the initial decision consistent with the facts and the law. However, the Board may not set aside the ALJ's findings of evidentiary fact, as distinguished from ultimate conclusions of fact, unless they are contrary to the weight of the evidence. See § 24-4-105(15)(b), C.R.8.2002; Board Policy 20-2.

Upon review of the Board's action, this court must affirm if it finds no error. However, if the action is arbitrary and capricious, an abuse of discretion, based upon clearly erroneous findings or findings unsupported by substantial evidence, or otherwise contrary to law, this court shall set aside the action. Section 24-4-106(7), (11)(a), C.R.S. 2002. The court must view the record as a whole and in the light most favorable to the Board when determining whether the Board's decision is supported by substantial evidence. See Lawley v. Dep't of Higher Educ., supra; Colo. State Bd. of Nursing v. Lang, 842 P.2d 1383 (Colo.App.1992).

The Board enforces the MPA, with its attendant goals of protecting the public from the "unauthorized, unqualified, and improper practice of the healing arts in this state." Section 12-86-1022, C.R.S.2002. It is comprised of members with medical degrees and has broad discretion to determine the ultimate fact of whether an applicant is qualified under the MPA. Vesting such discretion in the Board rather than the ALJ promotes uniformity in decision-making. Cf. State Bd. of Med. Exam'rs v. McCroskey, supra.

IL.

Johnson first contends that information about the quality of AUC's medical program may not be considered when assessing her application. Alternatively, she contends that the Board erroneously rejected the ALJ's findings of fact regarding her experience at AUC. We disagree with both contentions.

A.

Johnson contends that the Board's denial of her license based on information about AUC was erroneous because the Board may rely only on the grounds set forth in its notice of denial-here, the nonapproved status of AUC-and approval of her school is unnecessary under § 12-86-107.6 and Board policy because she is board certified. We disagree.

Here, the Board's notice of denial did not address § 12-36-107.6. However, in her answer to the notice of grounds for denial, Johnson raised that section in response to the Board's allegation that AUC was not an approved school. The Board then addressed the requirements of that section at the hearing, relying, inter alia, on information it had on the alleged inadequacy of the AUC program. Because under § 24-4-105(14)(a), the ALJ is required to make findings and conclusions on all material issues presented by the record, the ALJ's initial decision properly considered the information about AUC.

Moreover, § 12-86-107.6 requires the Board to consider the information available to it about the applicant's medical school when exercising its discretion to license board certified graduates of nonapproved medical schools. Johnson's argument to the contrary notwithstanding, the statement in Board Policy 20-5 that approval of the school is not necessary when the applicant is board certified does not indicate that the Board is not to consider information about the applicant's school, but only that the school need not meet the requirements of § 12-36-108.

Section 12-36-107.6 presumes that the applicant has not graduated from an approved medical school and permits the Board to license a board certified applicant, if it determines that the applicant's medical school and postgraduate training are equivalent to training at an approved school and render the applicant "qualified." Thus, the Board did not err in considering information about AUC in determining whether Johnson possessed the qualifications required by the MPA.

B.

Johnson also contends that the Board im-permissibly rejected the ALJ's findings of fact regarding certain investigative reports about AUC and her particular AUC experience. We disagree.

1.

In support of a denial of the license application, the Board introduced three reports, based on investigations of AUC made by New York, New Jersey, and California, as negative information available to the Board under § 12-86-107.6(1)(b). The ALJ made the following finding regarding the reports:

The Board possessed old reports from the states of NJ, NY and California in which those states refused to accept students in their respective clinical clerkships. However, the significance of the New York and California reports in this case [was] eradicated by the fact that both of those states granted the Applicant a medical license.

The ALJ concluded that the reports demonstrated only that the investigating states would not accept AUC students into their clinical clerkships, not whether they would license graduates or whether they would accept students who had attended classes at a location other than AUC. The ALJ's ultimate determination, after considering the information available to the Board regarding AUC, was that the information contained in the reports was not a sufficient basis for denying the application and that such a denial would constitute an abuse of discretion.

On review of the initial decision, the Board rejected the ALJ's conclusions and instead concluded that the three reports "provide ample evidence that the AUC ... has an inadequate medical degree program." The Board also concluded that the reports were significant despite their age because their dates corresponded with the period of Johnson's affiliation with AUC; that Johnson's licensure by New York and California did not affect the significance of the reports because the Board operates independently of other state boards and Johnson did not present evidence regarding those states' licensing laws and policies; and that the reports were not limited to the issue of whether students would be accepted into clinical programs, but also included "extensive, relevant information regarding the quality of the admissions process, the faculty, the administration, and the supervision of students such as the Applicant who completed clinical rotations in facilities other than those managed by the AUC."

Johnson characterizes the ALJ's findings regarding the reports as "evidentiary facts" that the Board may not reject unless they are contrary to the weight of the evi-denee. In contrast, the Board characterizes these findings as "ultimate conclusions of fact," which it may reject and replace as long as its conclusions have a reasonable basis in law. We agree, for the most part, with the Board.

Although the distinction between eviden-tiary facts and ultimate conclusions of fact is not always clear, evidentiary facts generally include the detailed factual or historical findings on which a legal determination rests. Ultimate conclusions of fact, on the other hand, involve conclusions of law, or at least mixed questions of law and fact, and often settle the rights and liabilities of the parties.

Lawley v. Dep't of Higher Educ., supra, 36 P.3d at 1245 (citation omitted).

That New York and California granted Johnson medical licenses is an historical fact. A separate finding of the ALJ reflecting Johnson's licensure in those and other states was not disturbed by the Board. However, the determination whether the significance of the New York and California reports was "eradicated" by Johnson's subsequent licensing in those states depends upon the scope of the investigations and the information contained in the written reports and thus constitutes an ultimate conclusion of fact. We also note that the ALJ made no finding that the New Jersey report was not significant.

To the extent that the dates of the reports are historical facts, the characterization of the reports as "old" includes some connotation as to the effect they should be given on consideration of Johnson's application. However, even if the Board was bound by the finding that the reports were old, such a finding is not necessarily inconsistent with a conclusion that Johnson did not possess the required qualifications. Thus, the Board was free to reach an alternative conclusion as to the content and effect of the reports, so long as the conclusion was supported by the law and the evidence.

2.

Regarding the quality of Johnson's particular medical school training, the ALJ found that Johnson attended the University of Missouri for the first two and one-half years of medical school and then took a leave of absence and that she studied through the AUC for the final two years. The ALJ did not make specific findings regarding the time and place of Johnson's clerkships during her affiliation with AUC, but found that: "Because (1) the Applicant attended a United States college for two of the four years of her medical college education and (2) her medical residency clerkships and medical practice were entirely in the United States, the Applicant is essentially a United States' trained medical professional." The initial decision further stated: "The Applicant's first two years of medical college occurred in the United States. She successfully interned, clerked and worked at several United States hospitals." The ALJ ultimately determined that denying Johnson a license based on an alleged failure to possess the minimum requirements would be arbitrary and capricious.

On review, the Board rejected those portions of the decision regarding Johnson's clerkships and substituted the following:

33. The Applicant's performance during her first two years of medical school at the University of Missouri-Columbia was, in her own words, "sub-optimal" and led to a required leave of absence from which she was never reinstated.
34. The second portion of the Applicant's medical school career occurred through the AUC, which allowed her to arrange her own clinical rotation. The Applicant had no knowledge and presented no evidence regarding the nature of the AUCs supervision of her clinical rotation and the information in the possession of the Board supports the finding that the AUC did not adequately supervise or evaluate those rotations and therefore was not sufficiently accountable for the quality of Applicant's medical school education. This determination is supported by the standards of the [LCME].

The Board rejected the conclusion that Johnson was essentially a United States' trained physician and substituted the conclusion that "when the factors specified in section 12-86-107.6(1) are considered in the context of the record as a whole, the evidence clearly supports the Panel's decision to deny Applicant's application for a license."

"[An ALJ's finding of evidentiary fact may not be altered by the Board if supported by the evidence," but the ALJ's conclusions are not binding. See Colo. State Bd. of Med. Exam'rs v. Hoffner, 832 P.2d 1062, 1067 (Colo.App.1992); § 24-4-105(15)(b).

The ALJ made no specific findings whether AUC adequately supervised Johnson's clinical rotations. However, Johnson contends that the ALJ's findings that she was essentially a United States' trained physician and that she had successfully completed her medical school and postgraduate training constituted findings of evidentiary fact that are inconsistent with a finding that she was not adequately supervised. We do not agree.

The ALJ's findings that Johnson successfully completed clerkships in the United States and was essentially a United States' trained physician contain elements of both evidentiary fact and ultimate fact. That Johnson passed courses and rotations she attended in the United States and graduated from medical school are historical facts that the Board may not, and did not, reject. However, to the extent that the findings that she was "successful" in completing the training and "essentially" a United States' trained physician indicate a conclusion that the training was equivalent to that offered by an approved school in the United States, they are conclusions of ultimate fact, which the Board was free to reject.

Whether AUC's supervision was "adequate" is itself an ultimate fact, determined based on the historical facts regarding the supervision. Johnson had the burden of proving that AUC's supervision of her clinical rotations rendered her education equivalent to that of an approved school or that she had obtained equivalent training in some other manner.

Johnson's argument to the contrary notwithstanding, the Board's determination that AUC did not adequately supervise her clinical rotations is not inconsistent with the ALJ's evidentiary findings and is supported by the record. The investigative report on AUC from New Jersey indicates that, at the time of the report, AUC's "clinical clerkship program [was] poorly organized and supervised" and that its evaluation of the students was insufficient because "all evaluations are left to instructors or preceptors of individual courses and clerkships" and "there is no institutional mechanism to assess the student's progress and accomplishments." The New York report found: "The clinical clerkship program is not adequately organized, administered, or supervised. There is little evidence of coordination or supervision of clerkships ... and no information as to how students are supervised or evaluated or how the Dean monitors or evaluates the facilities in which clerkships are performed." The California report noted "concerns over the apparent absence of an acceptable core clinical training program."

While Johnson testified that AUC supervised her clerkships through grading evaluations, that the clerkships were certified by the ACGME, and that she was graded according to the same exam and performance criteria as students from the United States medical schools, she had no knowledge of the existence, or extent, of actual communication between AUC and the clinical programs regarding her performance.

IIL

In its order, the Board referred to certain events related to interpersonal problems Johnson displayed in medical school. Information about these and similar problems during her postgraduate training was contained in her license application and referenced during the hearings before the ALJ and arguments presented to Panel B of the Board. Johnson contends that the Board impermissibly relied on this evidence when assessing the qualifications provided by her medical and postgraduate training. We disagree.

Section 12-36-116, C.R.S.2002, outlines the bases on which the Board may deny a license. The stated grounds are that the applicant fails to possess the qualifications required by the MPA, has engaged in unprofessional conduct, has been disciplined in another state regarding a medical license, or has not actively practiced medicine for the two years next preceding the submission of an application for a license. The absence of interpersonal problems is not one of the qualifications specifically required by the MPA. -

However, it does not follow that such problems may not be considered for any purpose. Section 12-86-107.6 states that the factors the Board should consider when assessing the qualifications of a foreign graduate "shall include" information about the school and postgraduate training. This indicates that certain additional information may be considered by the Board when exercising its discretion, so long as it is relevant to a determination of whether the applicant's qualifications are equivalent to a degree from an approved school pursuant to § 12-86-107.6 or, pursuant to § 12-86-117, whether the applicant has engaged in unprofessional conduct.

Here, the Board cited Johnson's statement in her application explaining that the second two years of her medical education were "better because [she] had performed sub-optimally onee before and was determined never to do that again." The Board also noted that she was asked to take a leave of absence from the University of Missouri and failed to return.

Apparently, Johnson was asked to take a leave of absence for a period of one to three years because she was too sensitive to criticism and had issues in handling authority figures. The failure to return was attributed to the fact that, when she decided to return to medical school six years later, the University of Missouri, and all other schools to which she applied in the United States, would not admit her with advanced standing, but instead would require her to repeat the first two years.

First, we note that, because Johnson invited the Board and the ALJ to go beyond information about AUC to examine the particulars of her medical school experience, the Board's consideration of that experience did not constitute a "hidden decision agenda" that violated her right to due process. Similarly, we need not determine whether the reference in § 12-86-107.6(1)(a) to "[the information available to the board relating to the medical school of the applicant" would ordinarily extend beyond the school's reputation to the applicant's performance there.

In any event, the Board's order did not explicitly rely on the fact that the leave of absence may have been precipitated by interpersonal problems. While it was not made clear what Johnson meant by performing "sub-optimally," the fact that she was asked to take a leave of absence from the program would seem to fall within any definition.

Further, the Board considered the leave of absence and the failure to return, inter alia, as reflecting poorly on AUC's admissions standards, noting in its exceptions to the initial decision that: "Despite Applicant's admitted 'suboptimal' performance and required leave of absence from the University of Missouri at Columbia medical school, the AUC accepted her on her terms to enter with advanced standing status in 1984." Thus, to the extent that the Board considered the reasons for the leave of absence, it properly viewed these facts as they bore on the quality of AUC and, ultimately, Johnson's qualifications.

In questioning the quality of Johnson's postgraduate training, although it noted that Johnson had completed more than the three years of training required for consideration under § 12-36-107.6, the Board, in its exceptions to the initial decision, pointed to the fact that she had been placed on probation during a portion of her postgraduate training for recurrent interpersonal problems with other hospital personnel. However, the ALJ did not allow testimony on the interpersonal problems, and the probation during postgraduate training was not referenced in the Board's final order.

Thus, regardless of any reliance by the Board on Johnson's interpersonal problems, we conclude that there is sufficient evidence in the record to support the Board's conclusion that Johnson's medical school education and postgraduate training were not equivalent to the training received by a graduate from an approved medical school and did not render her qualified to receive a Colorado license. See Lawley v. Dep't of Higher Educ., supra (reviewing court is not limited to ALJ's findings, but must review the entire record).

Accordingly, the Board's order denying Johnson's application for a medical license is affirmed.

Judge JONES and Judge KAPELKE concur.


author: Judge ROY.

text:
    Kent HYTKEN; Future Residential, LLC; Hytken Partnership I, LLC; and Hytken Partnership, LLC, Plaintiffs-Appellants, v. Daniel F. WAKE; J.S. Horowitz; Krendl, Horowitz & Krendl; Horowitz & Wake; James J. Peters; Christopher L. Tureson; Riggs, Abney, Neal, Turpen, Orbison & Lewis; and Vranesic, Peters & McBride, P.C., Defendants-Appellees.
    No. 01CA2107.
    Colorado Court of Appeals, Div. II.
    Sept. 26, 2002.
    Certiorari Denied April 28, 2003.

      Brice A. Tondre, Denver, Colorado, for Plaintiffs-Appellants.
    Davis, Graham & Stubbs, LLP, Michael J. Gallagher, Denver, Colorado, for Defendants-Appellees Daniel F. Wake; J.S. Horowitz; Krendl, Horowitz & Krendl; and Horowitz & Wake.
    Nathan, Bremer, Dumm & Myers, P.C., Mark H. Dumm, Allyson C. Hodges, Denver, Colorado, for Defendants-Appellees James J. Peters; Christopher L. Tureson; Riggs, Ab-ney, Neal, Turpen, Orbison & Lewis; and Vranesic, Peters & McBride, P.C.
   Opinion by

Judge ROY.

Plaintiffs, Kent Hytken; Future Residential, LLC; Hytken Partnership I, LLC; and Hytken Partnership, LLC, appeal from a trial court judgment dismissing their action against defendants, Daniel F. Wake; J.S. Horowitz; Krendl, Horowitz & Krendl}; Horowitz & Wake; James J. Peters; Christopher L. Tureson; Riggs, Abney, Neal, Tur-pen, Orbison & Lewis; and Vransec, Peters & McBride, P.C. Plaintiffs also appeal the order denying their motion for reconsideration. We affirm.

On December 29, 2000, plaintiffs, none of whom is a Colorado resident, filed legal malpractice and negligence actions against defendants, attorneys who had unsuccessfully represented them in earlier litigation. However, plaintiffs did not file a cost bond as required by § 13-16-101, C.R.S8.2002.

Pursuant to § 13-16-102, C.R.8.2002, defendants moved to compel plaintiffs to post a cost bond in the amount of $90,000. In their response, plaintiffs acknowledged that a cost bond was required, but argued that a bond of $7,500 was adequate. On July 6, 2001, the trial court granted defendants' motion, set the amount of bond at $75,000, and ordered that it be posted within twenty days.

On July 25, 2001, plaintiffs moved for an extension of time to post the bond, alleging that they had been "diligently attempting" to obtain one. Defendants objected to the extension and moved for dismissal of the action pursuant to § 13-16-1022. The trial court granted plaintiffs an extension until August 25, 2001.

On August 24, 2001, plaintiffs moved for another extension, again alleging that they were "using all due diligence" and that the issuance of a bond depended on the "final condition" that they supply the bonding company a letter of credit. Defendants again objected and moved to dismiss pursuant to § 13-16-102. The trial court granted plaintiffs an extension to September 8, 2001.

On September 12, 2001, plaintiffs filed a third, untimely motion for an extension until September 17, 2001, alleging that they were "diligently attempting" to obtain a cost bond. Plaintiffs asserted that the bonding company advised them "at the 11th hour" that it could not issue a bond because it had a conflict of interest based on bonds it issued to one of the defendants in other cases. Defendants again opposed the extension and moved for dismissal pursuant to § 13-16-102. The trial court granted plaintiffs an extension to September 19, 2001.

This record does not indicate that the trial court considered or explicitly denied defendants' pending motions to dismiss pursuant to § 13-16-102.

On September 19, 2001, plaintiffs filed a fourth motion for an extension, again alleging that they were "diligently attempting" to obtain a bond and that a new bonding agency had approved the bond and was transmitting it to defendants. On September 20, 2001, the trial court denied plaintiffs request and dismissed the action.

On September 25, 2001, plaintiffs moved for reconsideration of the dismissal, and they filed an employee's affidavit detailing the attempts to obtain a cost bond. The trial court denied the motion, and this appeal of the order of dismissal followed.

I.

Plaintiffs contend that the trial court erred in dismissing their action for failure to file a cost bond because they did not "neglect or refuse" to do so, but rather were unable to obtain one. We disagree.

A.

No Colorado appellate decision has enunciated the standard for review of a dismissal under § 13-16-102 based on a plaintiff's neglect or refusal to file a cost bond. We hold that such dismissals are reviewed under an abuse of discretion standard.

An action brought by a nonresident plaintiff cannot proceed without the filing of a cost bond once a defendant moves to compel such a filing under § 1316-102. Cf. Neidhart v. Collins, 46 Idaho 759, 271 P. 321 (1928). A nonresident plaintiff's neglect or refusal to file such a bond thus is equivalent to failure or neglect to prosecute. See, e.g., Ecker v. Town of West Hartford, 205 Conn. 219, 530 A.2d 1056 (1987)(discussing dismissal for "failure or neglect to prosecute"); Laffey v. City of New York, 52 N.Y.2d 796, 436 N.Y.S.2d 707, 417 N.E.2d 1248 (1980)(same).

Factual determinations of a party's neglect or refusal generally are reviewed under a clear error or abuse of discretion standard. See Public Highway Authority v. 455 Co., 3 P.3d 18 (Colo.2000). In light of the nature of a determination of neglect under § 18-16-102 and the prevailing standards in similar cases concerning failure or neglect to prosecute, we conclude that the trial court has discretion to determine whether a plaintiff's delay in filing a cost bond is a result of neglect or refusal. See Lake Meredith Reservoir Co. v. Amity Mutual Irrigation Co., 698 P.2d 1340 (Colo.1985) (applying the same rationale with respect to a plaintiff's failure to prosecute).

B.

"Abuse of discretion" is a legal term reflecting the opinion of an appellate court that the trial court committed an error of law in the cireumstances. See Cook v. District Court, 670 P.2d 758 (Colo.1983). An appellate court will find an abuse of discretion only where the trial court's findings and conclusions are so manifestly against the weight of evidence in the record as to compel a contrary result, such that the trial court's ruling is manifestly arbitrary, unreasonable, or unfair. See In re Weisbard, 25 P.3d 24 (Colo.2001); E-470 Public Highway Authority v. 455 Co., supra.

As pertinent here, § 13-16-102 provides:

If [a civil} action [by a nonresident] is commenced without filing such instrument of writing ... it is the duty of the court, on motion of the defendant or any officer of the court, ... to rule the plaintiff, on or before the day in such rule named, to give security for the payment of costs in such suit. If such plaintiff neglects or refuses, on or before the day in such rule named, to file such instrument, the court, on motion, shall dismiss the suit.

Plaintiffs contend that they neither neglected nor refused to file a cost bond, but were unable to do so, and therefore the case could not be dismissed. In support of this argument, plaintiffs cite Walcott v. District Court, 924 P.2d 163, 166 (Colo.1996), for the proposition that "[iJnability to obtain a cost bond does not equate to the neglect or refusal to pay such a bond." This reliance, however, is misplaced.

In Walcott, the trial court dismissed an indigent plaintiff's case for failure to post the mandatory cost bond. On appeal, the supreme court focused only on the plaintiff's inability to pay costs because of indigency, an exception explicitly provided in § 13-16-103, C.R.S.2002. Thus, the supreme court's analysis was limited to those situations where a plaintiff's inability to file a cost bond stems from the plaintiff's indigency.

The supreme court also noted that "[i]f the General Assembly intended that failure to file a cost bond, regardless of the reason, would mandate dismissal, it would not have predicated dismissal specifically on whether a 'plaintiff neglects or refuses' " Walcott v. District Court, supra, 924 P.2d at 166. However, the supreme court did not define "ne-gleet."

Plaintiffs here agreed to file a cost bond, so the sole question before us is what constitutes "neglect" under § 13-16-102.

When interpreting a statute, an appellate court looks to its purposes, reading it as a whole and every word therein to construe its terms harmoniously. See Colorado Dept. of Labor & Employment v. Esser, 30 P.3d 189 (Colo.2001). An appellate court must interpret a statute to give effect to the entire statutory scheme. See Preston v. Dupont, 35 P.3d 433 (Colo.2001).

Under §§ 1816-101 and 18-16-102 the court has no discretion regarding the filing of a cost bond, and dismissal for failure to do so is mandatory. See Edgar Gold & Silver Mining Co. v. Taylor, 10 Colo. 110, 14 P. 113 (1887); Lewis v. Keim, 883 P.2d 610 (Colo.App.1994), disapproved on other grounds by Walcott v. District Court, supra. The General Assembly clearly and unambiguously intended to preclude lawsuits by nonresident plaintiffs unless a cost bond is filed. However, nonresident plaintiffs are excepted from the requirements of §§ 183-16-101 and 13-16-102 if they are unable to file a cost bond because of indigency, see § 18-16-1083, or if the defendant waives the bond, see Payton v. M. Spiesberger & Son Co., 40 Colo. 289, 90 P. 605 (1907). Absent these circumstances, nothing in the statutes or case law provides an exception for a nonresident plaintiff who is unable to obtain a cost bond despite good faith efforts to do so, nor does the statute contemplate a showing of excusable neglect. In fact, the statute unambiguously makes neglect inexcusable by mandating dismissal in the event of its occurrence.

Neglect is "a purely objective fact, that a person has not done that which it was his duty to do; it does not indicate the reason for this failure." Black's Law Dictionary 1055 (7th ed.1999). Therefore a nonresident plaintiff's multiple failures to file a cost bond as required by § 18-16-101 could constitute "neglect" as that term is used in § 13-16-102. Accordingly, the burden is on the plaintiff to file a cost bond, and failure to do so for any reason other than indigeney or a defendant's waiver mandates dismissal. To hold otherwise would read into the statutory scheme exceptions not provided by the legislature. See Slack v. Farmers Insurance Exchange, 5 P.3d 280 (Colo.2000)(courts will not create an exception to a statute that the plain language does not suggest or demand); Dikeou v. Dikeou, 928 P.2d 1286 (Colo.1996); see also Cook v. District Court, supra (holding that discretion in making in forma pau-peris determination limited to factors in § 13-16-103).

Our conclusion finds additional support in Neidhart v. Collins, supra, which held that where a cost bond is not given, especially after the plaintiff has been afforded ample opportunity to do so, the court may dismiss the action.

Nor is our interpretation of the word "neglect" inconsistent with Walcott v. District Court, supra. Under our interpretation, failure to file a cost bond does not mandate dismissal if a nonresident plaintiff failed to file the bond because of indigency or if the defendant has waived the requirement. See § 13-16-103; Payton v. M. Spiesberger & Son Co., supra.

Here, plaintiffs failed to file a cost bond before instituting the suit, as required by § 18-16-101. At the time of the dismissal, almost nine months later, no cost bond had been filed. Defendants' repeated motions to dismiss for the failure to file a cost bond negate any suggestion of waiver.

Plaintiffs did not seek an exception from the cost bond requirement or suggest they were unable to comply with the requirement because of indigency; rather, plaintiffs continually assured 'the court that they would file a cost bond and insisted that there were mitigating cireumstances contributing to the delay. Nevertheless, plaintiffs missed both the third and the fourth extended deadlines without an explanation, pleading only mitigating circumstances.

There can be little doubt that, irrespective of the reason, plaintiffs did not fulfill their duty to file a cost bond by any of the many extended deadlines granted by the trial court. On this record, we conclude the trial court did not abuse its discretion by dismissing the case.

In their reply brief, plaintiffs argue that the dismissal violates C.R.C.P. 121 §§ 1-10 or 1-15 and that the trial court acted prematurely because defendants did not move to dismiss after the trial court denied the last request for an éxtension. However, neither argument was made to the trial court in the motion for reconsideration. We cannot address issues raised for the first time on appeal, Minto v. Lambert, 870 P.2d 572 (Colo.App.1993); nor do we address issues raised for the first time in the reply brief. People v. Czemerynski, 786 P.2d 1100 (Colo.1990). We note, however, that when the trial court dismissed the action, there were three pending motions to dismiss pursuant to § 13-16-102, to which plaintiffs had responded.

Having concluded that plaintiffs "neglected" to file a cost bond within the meaning of § 18-16-102, we need not decide whether they "refused" to do so.

IL

Plaintiffs also contend that the trial court abused its discretion by setting a high cost bond and dismissing the case without first holding an evidentiary hearing. We disagree.

The reasonableness of costs and their amount are matters within the sound discretion of the trial court, and we will not disturb that determination on appeal absent an abuse of discretion. See Ballow v. PHICO Insurance Co., 878 P.2d 672 (Colo.1994). A party must request a hearing on the reasonableness of expert fees or waives the right thereto. See Van Schaack v. Van Schaack Holdings, Ltd., 856 P.2d 15 (Colo.App.1992), aff'd, 867 P.2d 892 (Colo.1994).

In setting the amount of the cost bond, the trial court explicitly took note of the complexity and breadth of the case, the amount of damages sought, the numerous factual bases allegedly supporting the claims, the long period over which the claims occurred, the large number of defendants, and the need for expert witnesses. Also, plaintiffs did not request a hearing on costs, and there was no statutory requirement that the court hold such a hearing. We therefore perceive no abuse of discretion.

IIL

Plaintiffs contend that the trial court erred in denying their motion to reconsider the dismissal. We disagree.

A motion to reconsider is addressed to the sound discretion of the trial court. See Bowman v. Songer, 820 P.2d 1110 (Colo.1991). Because the trial court properly concluded that plaintiffs neglected to file a cost bond, we perceive no abuse of discretion in the denial of the motion for reconsideration.

The judgment and order are affirmed.

Judge JONES and Judge CASEBOLT concur. '


author: Judge MARQUEZ.

text:
    Christopher M. COLE, Plaintiff-Appellee, v. UNITED SERVICES AUTOMOBILE ASSOCIATION (USAA), Defendant-Appellant.
    No. 01CA2542.
    Colorado Court of Appeals, Div. I.
    Oct. 10, 2002.
    Certiorari Denied May 12, 2003.

      Law Firm of Richard P. Ranson, Richard P. Ranson, Colorado Springs, Colorado, for Plaintiff-Appellee.
    Johnson & Ayd, P.C., Patricia M. Ayd, Denver, Colorado, for Defendant-Appellant.

       Justice KOURLIS and Justice COATS would grant as to the following issues:
      Whether the court of appeals erred in concluding that the injury "flowed from the use of the uninsured vehicle" when the plaintiff's injuries were the result of a physical assault with a wine bottle and fists committed by a former passenger (who was not the owner or operator of the vehicle) after he had exited the parked vehicle.
      Whether the court of appeals erred in creating a new form of vicarious liability for owners or operators of vehicles, by stating that, "because plaintiff's injuries flowed from the use of the uninsured vehicle, plaintiff is legally entitled to recover from the owner or operator of the uninsured vehicle for using it to allow the assault on plaintiff."
      Whether extension of UM coverage to cover this fact pattern violates the spirit and intent of the UM statute and violates the public policy of Colorado. ‘

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2002.

   Opinion by

Judge MARQUEZ.

In this declaratory judgment action, defendant, United Services Automobile Association, appeals the summary judgment in favor of plaintiff, Christopher M. Cole. We affirm.

Plaintiff is a covered person under an automobile insurance policy issued by defendant. Plaintiff initiated this action seeking a declaration of defendant's contractual responsibilities under the uninsured motorist section of the policy, which provides:

We will pay compensatory damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of:
1. BI [bodily injury] sustained by a covered person and caused by an auto accident;
The owner's or operator's liability for these damages must arise out of the ownership, maintenance or use of the uninsured motor vehicle.

The policy defines "bodily injury" as "bodily harm, sickness, disease, or death," but does not define the word "accident."

Defendant moved for summary judgment, and the parties submitted the dispute to the trial court on stipulated facts.

According to the stipulated facts, plaintiff was a passenger in an automobile traveling in the right lane of Union Boulevard in Colorado Springs when an uninsured vehicle began to tailgate plaintiff's vehicle. The driver of plaintiff's vehicle slowed so that the uninsured vehicle could pass. The uninsured vehicle then pulled around plaintiff's vehicle on the left and "pulled back in front of [plaintiff's] vehicle and stopped suddenly." Plaintiff's vehicle stopped to avoid a collision. The driver of the uninsured vehicle then backed his vehicle into the front of plaintiff's vehicle. Both drivers left their vehicles, and an altercation ensued. A passenger in the uninsured vehicle went to plaintiff's vehicle, opened the passenger door, and assaulted plaintiff with his fists and a wine bottle.

Defendant determined that personal injury protection coverage was available under the policy, but denied uninsured motorist coverage because plaintiff's injuries were "not the result of an auto accident, but [of an] assault from a person entering [plaintiff's vehicle] as a pedestrian."

However, the trial court, relying on State Farm Mutual Automobile Insurance Co. v. McMillan, 925 P.2d 785 (Colo.1996), concluded that plaintiff's injuries were caused by an accident within the meaning of the policy and declared that the uninsured motorist provision mandated coverage for plaintiffs compensatory damages. The trial court determined that the "legal distinction" between sending an assailant directly from the uninsured vehicle to batter a passenger in another car and firing a bullet from an uninsured vehicle into the victim's car seemed minute.

We view the court's order as a summary judgment and review it de novo. See Fire House Car Wash, Inc. v. Bd. of Adjustment for Zoning Appeals, 30 P.3d 762 (Colo.App.2001).

I.

Defendant contends that the trial court erred in finding coverage under the policy because plaintiffs injuries did not arise out of the use and operation of the uninsured motor vehicle, but rather resulted from a physical attack with a wine bottle by an assailant who had severed his connection with the parked uninsured vehicle. We disagree.

Whether coverage is available under the policy depends on whether plaintiff's injuries arose from the "use" of the uninsured vehicle. See Cung La v. State Farm Auto. Ins. Co., 830 P.2d 1007 (Colo.1992)(causal connection required between the uninsured motor vehicle and the injury).

The supreme court has interpreted the term "use" broadly in automobile insurance coverage cases. State Farm Mut. Auto. Ins. Co. v. Kastner, 56 P.3d 1144 (Colo.App.2002).

An injury arises out of the use of an automobile if it is causally related to a conceivable use of the automobile that is not foreign to its inherent purpose. To establish this causal relationship, the claimant must show that the injury would not have occurred but for the vehicle's use. Metro. Prop. & Cas. Ins. Co. v. Neubert, 969 P.2d 788 (Colo. App.1998).

The claimant need not establish that the vehicle was the sole cause of the accident; it is sufficient that the injury "originated in," "grew out of," or "flowed from" use of the vehicle. Cung La v. State Farm Auto. Ins. Co., supra, 830 P.2d at 1011.

In Cung La, supra, an insured was injured when three vehicles prevented the insured from changing the speed or direction of his vehicle and enabled an assailant in an uninsured vehicle to shoot the insured. The supreme court found a causal connection between the insured's injuries and the uninsured motor vehicle, reasoning that without the assistance of the three vehicles, the assailant would not have been able to restrict the movement of the insured's vehicle and shoot the insured.

In McMillan, supra, a vehicle began tailgating the plaintiff's vehicle and flashing its headlights. After a verbal altercation and a chase, the second vehicle pulled alongside, and the driver fired shots at the plaintiffs vehicle, injuring the plaintiff, The driver of the second vehicle was uninsured. The supreme court concluded that the plaintiffs injuries were "caused by accident" as set forth in the insurance policy and were within the policy's coverage.

Here, as in Cung La and McMillan, the uninsured vehicle impeded the progress of plaintiff's vehicle and enabled the passenger of the uninsured vehicle to get out and assault plaintiff. Contrary to defendant's assertion, the uninsured vehicle was not used merely to transport the assailant to the seene of the assault. Rather, the uninsured vehicle was integrally related to the perpetration of the assault, and, but for its use, the assault on plaintiff would not have occurred. In our view, the injury "originated in," "grew out of," or "flowed from" the use of the uninsured vehicle See Cung La v. State Farm Auto. Ins. Co., supra.

Moreover, the fact that the assailant left the uninsured vehicle before assaulting plaintiff does not sever the causal connection between plaintiff's injuries and the uninsured vehicle. See Metro. Prop. & Cas. Ins. Co. v. Neubert, supra (but for accident arising from the use of the car, insured would not have approached uninsured vehicle and would not have been assaulted by passengers exiting the uninsured vehicle); see also Cung La v. State Farm Auto. Ins. Co., supra (claimant need not establish that the vehicle was the sole cause of the accident).

Nor are we persuaded by those cases from other jurisdictions reaching a contrary conclusion when addressing a similar fact pattern. See, e.g., Laycock v. Am. Fomily Mut. Ins. Co., 289 Ill.App.3d 264, 224 Ill.Dec. 821, 682 N.E.2d 382 (1997); Cannon v. Maine Bonding & Cas. Co., 138 N.H. 365, 639 A.2d 270 (1994).

Thus, plaintiff has established a causal connection between his injuries and the uninsured vehicle sufficient to trigger uninsured motorist coverage under the policy.

IL

Defendant nevertheless contends that the trial court erred in finding plaintiff was covered under the policy for "compensatory damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle." It argues that plaintiff's injuries were not inflicted by the owner or operator of the uninsured motor vehicle, but by the former passenger. We disagree.

Because plaintiff's injuries flowed from the use of the uninsured vehicle, plaintiff is legally entitled to recover from the owner or operator of the uninsured vehicle for using it to allow the assault on plaintiff. See Cung La v. State Farm Auto. Ins. Co., supra.

The judgment is affirmed.

METZGER and RULAND , JJ., concur.