author: Justice BENDER Justice COATS,

text:
    The PEOPLE of the State of Colorado, Petitioner, v. Theodore Alex TRUJILLO, Respondent.
    No. 01SC434.
    Supreme Court of Colorado, En Banc.
    July 1, 2002.

      Ken Salazar, Attorney General, Laurie A. Booras, First Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, Colorado, Attorneys for Petitioner.
    Suzan Trinh Almony, Broomfield, Colorado, Attorney for Respondent.
   Justice BENDER

delivered the Opinion of the Court.

I. Introduction

In this case we consider whether a defendant's unwarned custodial statements may be used to rebut the theory of defense or to impeach a witness other than the defendant when the defendant does not testify. The defendant, Theodore Trujillo, failed to attend a court proceeding in Jefferson County and a warrant was issued for his arrest. He was thereafter arrested in Denver on the warrant for violating his bail bond in the Jefferson County case. While in custody in Denver, and without being given Miranda warnings, Trujillo made incriminating statements to police officers that he knew there was a warrant for his arrest.

Trujillo was then prosecuted in Jefferson County for the crime of violating bail bond conditions. The trial court ruled the statements were not made following Miranda warnings. Trujillo did not testify at trial. After the defense rested, the prosecution offered Trujillo's custodial statements through the testimony of a police officer to rebut Trujillo's defense that he possessed poor cognitive ability and therefore did not know about the hearing. On appeal the prosecution argues in the alternative that this evidence was properly admitted to impeach Trujillo's wife's testimony.

The court of appeals reversed the conviction on the grounds that Trujillo's custodial statements were improperly admitted at trial to rebut defense witnesses other than the defendant. People v. Trujillo, 30 P.8d 760 (Colo.App.2000). We hold that a defendant's voluntary, unwarned, custodial statements may only be used to impeach the defendant if he testifies at trial. If the defendant does not testify at trial, such unwarned custodial statements may not be used either to rebut a defense theory or to impeach a witness other than the defendant. Because Trujillo did not testify at trial, the admission of his custodial statements was constitutional error, and our review of the record leads us to conclude that this error was not harmless beyond a reasonable doubt. Hence, we affirm the decision of the court of appeals to reverse the judgement of the trial court and to return this case to the trial court for a new trial.

II. Facts And Proceedings Below

On February 3, 1997, Trujillo was scheduled to appear in Jefferson County Court in Golden. He failed to appear and a warrant was issued for his arrest. The warrant was then transferred to Jefferson County District Court. Trujillo was subsequently arrested on February 12, 1997 at the Warwick Hotel in Denver. ' |

Following his arrest, two police officers asked Trujillo questions without first giving him Miranda warnings. Trujillo told the officers that he understood there was a warrant for his arrest and that at the time of the arrest he was fleeing to California.

A suppression hearing was held in a different case in Denver District Court on separate charges arising from his February 12 arrest in Denver. That court determined that Trujillo's statements were taken in violation of Miranda, and could not be used during the prosecution's case in chief as substantive evidence of the defendant's guilt. However, the court also ruled that the statements were made voluntarily and could be admitted on rebuttal for impeachment purposes if the defendant were to testify.

At trial in Jefferson County District Court, Trujillo did not testify. His mother, Alice Trujillo, testified that her son has a poor memory, had taken Ritalin in the past, and took special education classes in school. Similarly, Trujillo's wife, Shelly Trujillo, testified that her husband is very forgetful and that she takes care of organizing the household, including keeping track of her husband's obligations; such as court dates. Shelly Trujillo's day-timer page for February 3, 1997 was admitted into evidence. It reflected that her husband had a court appearance scheduled in Lakewood on February 3. It did not reflect that he was scheduled to appear in Golden.

Shelly Trujillo's testimony was vague and inconclusive. She testified that either Trujillo did not tell her the correct date or that she had recorded it incorrectly. At one point, the defendant's attorney asked Shelly Trujillo if her husband told her the date he had to be in court when he returned home from the preliminary hearing. The prosecutor objected on the grounds that the question called for hearsay. The court held that the answer was not offered to prove the truth of the matter asserted and was therefore not hearsay. Shelly Trajillo's answer did not indicate that' her husband told her anything. She stated that he usually tells her about court dates after a hearing and that if he did not tell her, she would write it in the day-timer when she found out about it later.

After the close of the defendant's case, the prosecution offered the testimony of Sergeant David Fisher to impeach Shelly Trujillo's testimony and to rebut Trujillo's defense that he is generally unable to keep track of his appointments and was unaware of the scheduled court appearance on February 8, 1997.

The trial court did not hold a separate suppression hearing regarding the admissibility of Trujillo's statements but allowed argument on this issue by the parties out of the presence of the jury. The court also referred to the rulings of the Denver District Court regarding Trujillo's custodial statements. Although the Denver court ruled that Trujillo's statements would be admissible only to impeach him if he testified, the trial court in this case ruled that Trujillo's statements were admissible as evidence to rebut the theory of defense that the defendant did not know about his court appearance because of his learning disabilities and poor memory. In addition, the trial court noted that the Denver District Court tran-seript did not indicate the statements were involuntarily made.

Thereafter, Sergeant Fisher testified that during a post-arrest interview, Trujillo told Fisher that Trujillo knew there was a warrant for his arrest and that on the day of his arrest he was in the process of fleeing to California.

During closing arguments, the prosecution argued Trujillo's unwarned custodial statements satisfied the mens rea element of "knowingly" that is required to find, Trujillo guilty of the crime of violating bail bond conditions. The prosecution argued that because Trujillo told Sergeant Fisher that Trujillo was aware of the warrant and that he was fleeing the state, he knew about the Jefferson County court date which he failed to attend nine days earlier:

[ TJhis is how you prove culpable mental state .... the best way to prove that is by the person's own statements. And what are the defendant's statements? That he knew there was a warrant for his arrest and that he was in the process of fleeing to California. It doesn't get any clearer than that. We have proven this case and we ask that you find him guilty. Thank you.

And:

It says right here "culpable mental state" of course is an element and must be proven.... And the clear inference is when someone says they are fleeing-what did he say? What is the position of the defense that he is a confused fellow? What did the defendant say when he is finally captured nine days later? Did he say, "Geez, that court date in Jeffco, I spaced it. Sorry." Is that what he said? No, he is fleeing to California. He knew there was a warrant out for his arrest. I mean, that is clear. j

The defense did not request, and the trial court did not provide, a limiting instruction informing the jury of the purpose for which it was to consider Trujillo's statements.

The jury convicted Trujillo of the crime of violating bail bond conditions. He was also adjudicated a habitual criminal and sentenced to imprisonment for six years. The court of appeals reversed Trujillo's conviction and vacated the habitual eriminal adjudication on the grounds that Trujillo's unwarned custodial statements were improperly admitted at trial The court reasoned that the United States Supreme Court's holding in James v. Tilinois, 498 U.S. 307, 110 S.Ct. 648, 107 L.Ed.2d 676 (1990), precluded the use of defendant's unwarned statements to rebut the testimony of defense witnesses other than the defendant.

The prosecution appeals the court of appeals' holding to this court.

III. Analysis

The prosecution argues that Theodore Trujillo's unwarned custodial statements were properly admitted to impeach Shelly Trujillo's testimony. The prosecution also argues that Theodore Trujillo's statements were admissible to rebut his defense that he did not know, due to cognitive disabilities, of his court appearance on February 8, 1997. Both parties concede that Trujillo's statements were illegally obtained since he was not advised of his Miranda rights before making them. Both parties also agree that Trujillo's statements were voluntary. Thus, neither the illegality of the police action nor the voluntariness of the statements are at issue here.

Analysis of this case requires us first to consider definitions of the terms impeachment and rebuttal. We then turn to the admissibility of a defendant's custodial statements in general, and apply these basic principles to whether Trujillo's statements were admissible.

A.' Definitions Of Impeachment And Rebuttal

Impeachment is a technique used to attack the truth-telling capacity of a witness. Impeachment may be accomplished by demonstrating the witness' bias, self-contradietion, poor character, defect in perceptive capacity, prior convictions or bad acts, or by contradicting the witness on specific facts in her testimony. 1 John W. Strong, McCormick on Evidence § 33 (5th ed.1999).

This case involves only the impeachment technique of demonstrating the witness' self-contradietion by proof of her prior statement that is inconsistent with her present testimony. Id. When impeaching with a prior inconsistent statement, it is axiomatic that the prior inconsistent statements must belong to the testifying witness. Id. § 34; 4 Joseph M. McLaughlin & Jack B. Weinstein, Weinstein's Federal Evidence § 6183.04[1] (2d ed. 1997) ("To be admissible, ... the inconsistent statement must belong to the person being impeached by it."); Summers v. State, 102 Nev. 195, 718 P.2d 676, 680 (1986) ("The rule permitting the admission of impeaching prior inconsistent statements requires that the impeaching prior inconsistent statements be statements made by the witness to be impeached.").

At common law, impeachment evidence was not admissible as substantive evidence, but merely to attack the truth-telling capacity of a witness. Montoya v. People, 740 P.2d 992 (Colo.1987). However, by statute, such evidence may also be used substantively to prove an element of the case. For example, in criminal cases, section 16-10-201, 6 C.R.S. (2001), permits admission of the witness prior inconsistent statement as substantive evidence of the defendant's guilt if the foun- . dational requirements of the statute are met. If the statutory requirements of section 16-10-201 are not met, or if a defendant's custodial statements are not made subsequent to Miranda warnings but are voluntary, then the statements are to be considered only as impeachment evidence. People v. Saiz, 32 P.3d 441, 446 (Colo.2001); Montoya, 740 P.2d at 997 (providing as an example of when evidence may not be used substantively under section 16-10-2201, "a prior custodial statement of an accused taken in violation of his Miranda rights and thus constitutionally admissible for the limited purpose of impeaching the accused's trial testimony").

Unlike impeachment by a prior inconsistent statement, which involves the concept of proof that the witness made statements inconsistent with his present testimony, rebuttal refers to contrary evidence and has two meanings: (1) "contradiction of an adverse party's witness," or (2) "[the time given to a party to present contradictory evidence or arguments." Black's Low Dictionary 1274 (ith ed.1999). The first definition goes to contradicting a specific witness. The second definition refers to a distinct section of a trial. It is evidence that "explains, refutes, counteracts, or disproves the evidence put on by the other party." People v. Rowerdink, 756 P.2d 986, 994 (Colo.1988). This type of rebuttal evidence is generally substantive in nature, may support the party's case-in-chief, id., and is presented after the opposing party has presented its evidence. Thomas A. Mauct, Fundamentals of Trial Techniques § 1.8 (1980). Rebuttal evidence is admissible at the discretion of the trial court. Rowerdink, 756 P.2d at 994.

Despite the definitions set forth above, the terms impeachment and rebuttal are sometimes used interchangeably. For example, in this case, the Denver District Court, ruled that Trujillo's statements could be used "in rebuttal" if Trujillo testified at trial For clarity in this case we will refer to impeachment as proof that the witness made statements inconsistent with his present testimony. When we use the term rebuttal, we will focus on the second definition above-that which is presented to contradict or refute the opposing party's case.

Using the terms impeachment and rebuttal as we have here defined them, we address the issue in this case: whether Trujillo's unwarned custodial statements may be used to impeach a witness other than himself and whether these statements are admissible to rebut his theory of defense.

B. Admissibility Of A Defendant's Custodial Statements

We turn now to a discussion of the admissibility of a defendant's custodial statements. When determining admissibility, courts must always protect the defendant's fundamental privilege against being compelled to testify against himself in a criminal case as embodied in the Fifth Amendment. U.S. Const. amend. V; People v. Mozee, 728 P.2d 117, 122 (Colo.1986).

A criminal defendant's privilege against self-incrimination permits him to remain silent in the face of interrogation while in custody and at trial. Miranda, 384 U.S. at 467-68, 86 S.Ct. 1602. Unless a defendant is fully warned of his Fifth Amendment rights and knowingly, voluntarily, and intelligently waives those rights, his custodial statements are considered illegally obtained and are inadmissible as substantive evidence against the defendant. People v. Dracon, 884 P.2d 712, 716 (Colo.1994); Mozee, 723 P.2d at 123.

With these fundamental underpinnings in mind, there are several rules which affect whether a defendant's unwarned custodial statements may be admitted at trial. The applicability of these rules depends on several factors, including whether a defendant's custodial statements are given pursuant to Miranda's constitutional safeguards that are designed to ensure protection of the defendant's privilege against compulsory self-incrimination, whether the statements are voluntarily made, and whether the defendant testifies at trial. Depending on the cireum-stances, a defendant's custodial statements may be inadmissible altogether, offered as substantive evidence of guilt, or offered to impeach the testifying defendant's credibility.

If a defendant's custodial statements are given pursuant to proper Miranda warnings and are voluntary, then the statements are generally admissible as substantive and impeachment evidence. Miranda, 384 U.S. at 478, 86 S.Ct. 1602. Of course, rules of evidence will affect the statement's admissibility. On the other hand, a defendant's involuntary custodial statements, irrespective of whether the defendant is warned of his privilege against self-incrimination, are not admissible at trial for any purpose. Mincey v. Arizona, 437 U.S. 385, 397-98, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); People v. Branch, 805 P.2d 1075, 1081 (Colo.1991).

When a defendant in custody is questioned and is not warned of his Miranda rights, his statements are considered illegally obtained. Miranda, 384 U.S. at 479, 86 S.Ct. 1602; State v. Jordan, 891 P.2d 1010, 1014 (Colo.1995). Such unwarned custodial statements, whether or not voluntary, are inadmissible in the "government's direct case, or otherwise, as substantive evidence of guilt." United States v. Havens, 446 U.S. 620, 628, 100 S.Ct. 1912, 64 LEd.2d 559 (1980). See also Jordan, 891 P.2d at 1014.

Unlike involuntary custodial statements, voluntary unwarned custodial statements may be admissible at trial to impeach the defendant. This is the only judicially recognized purpose for which the defendant's unwarned but voluntary statements may be used. Harris v. New York, 401 U.S. at 225-26, 91 S.Ct. 643 (1971); James, 493 U.S. at 312, 110 S.Ct. 648; Branch, 805 P.2d at 1081; People v. Cole, 195 Colo. 483, 490, 584 P.2d 71, 76 (1978). If the defendant testifies at trial and his testimony is inconsistent with his unwarned, voluntary, custodial statements, then the prior statements are admissible to impeach his credibility. Harris, 401 U.S. at 225, 91 S.Ct. 643; James, 493 U.S. at 312, 110 S.Ct. 648; Branch, 805 P.2d at 1081; People v. Cole, 195 Colo. at 490, 584 P.2d at 76.

C. When The Defendant Does Not Testify, His Unwarned Custodial Statements Are Not Admissible As Substantive Evidence Of Guilt Or For Impeachment Purposes

A defendant's unwarned custodial statements may not be admitted against him as substantive evidence. Miranda, 384 U.S. at 479, 86 S.Ct. 1602. Unless a defendant waives his constitutional privilege against self-incrimination, he shall not be compelled to be a witness against himself at trial. A defendant possesses an absolute right not to testify at trial. Her decision not to testify does not constitute a waiver of her privilege against self-inerimination. Mozee, 723 P.2d at 123.

Admission at trial of a defendant's prior custodial statements as substantive proof of guilt is tantamount to compelling the defendant to testify against himself. If the defendant waives his privilege against self-incrimination before giving his statements by acknowledging his Miranda rights or by testifying at trial, his statements may be admitted without offending the Constitution. On the other hand, if his prior custodial statements are unwarned, and the defendant does not testify, admission of the defendant's custodial statements as evidence of guilt during the state's case-in-chief or during rebuttal, violates his constitutional privilege against self-incrimination. Branch, 805 P.2d at 1081.

Having decided that a defendant's unwarned custodial statements may not be admitted as substantive rebuttal evidence, we turn now to the question of whether such statements may be admitted to impeach a witness other than the defendant. The United States Supreme Court's jurisprudence as well as the basic definition of impeachment by prior inconsistent statements lead us to conclude that a defendant's unwarned custodial statements may only be used to impeach the defendant himself if he testifies at trial and may not be used to impeach other defense witnesses.

The United States Supreme Court has established a line of cases holding that the impeachment exception to the exclusionary rule only permits impeachment of the defendant with his own unwarned statements. The defining case is Harris which created this impeachment exception. Colorado explicitly followed the Harris rule in Cole. Neither Harris nor Cole considered whether the exclusionary rule precluded impeachment of a witness with a non-testifying defendant's custodial statements. Although we have not yet considered this precise issue, the United States Supreme Court decided this question in James. In that case, the Court specifically prohibited using a defendant's unwarned custodial statements to impeach a defense witness when the defendant did not testify. James, 493 U.S. at 320, 110 S.Ct. 648.

The prosecution argues that James is a Fourth Amendment case and is inapplicable here. However, a close reading of James demonstrates that its rationale is as disposi-tive when the statement was obtained in violation of the Fifth Amendment as when evidence is obtained in violation of the Fourth Amendment. James rests upon Supreme Court precedent dealing with the exclusion of evidence "iMlegally obtained" in violation of both the Fourth and Fifth Amendments. James, 493 U.S. at 312-13, 110 S.Ct. 648 (holding that statements obtained as a fruit of an illegal search cannot be used to impeach a defense witness other than the defendant)(citing Harris 401 U.S. 222, 91 S.Ct. 643, 28 LEd.2d 1 (holding that defendant's unwarned custodial statements properly admitted to impeach defendant's perjurious trial testimony); Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954) (holding that questions regarding unlawfully seized evidence properly admitted on cross to expose defendant's per-jurious trial testimony). In fact, the majority opinion in James refers explicitly to the Fourth Amendment only twice in eleven pages. .

James relies heavily on the reasoning of Harris, a Fifth Amendment case, which in turn is based on the reasoning in Walder, a Fourth Amendment case. In Harris the defendant testified at trial and his prior inconsistent, unwarned but voluntary statements were used to impeach him. The Court applied the impeachment exception to the exclusionary rule as set forth in Walder. The Court was "not persuaded that there is a difference in principle that warrants a result different from that reached by the Court in Waider" and adopted the Walder balancing test for a Fifth Amendment violation. Harvis, 401 U.S. at 225, 91 S.Ct. 643.

Cases following Walder and Harris express the notion that the impeachment exception to the exclusionary rule applies equally in Fourth and Fifth Amendment cases. For example, in Michigan v. Tucker, 417 U.S. 433, 446, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974), the Court discussed the deterrent rationale of the exclusionary rule as applied to Fourth Amendment search-and-seizure violations. It explained, "[Tlhis rationale would seem applicable to the Fifth Amendment context as well." Tucker, 417 U.S. at 447, 94 S.Ct. 2357.

Our research of post-Harris cases shows that most jurisdictions recognize that James continues 'the Harris and Walder line of cases to hold that in the context of either a Fourth or Fifth Amendment violation, illegally obtained statements may be used to impeach a testifying defendant but not for substantive evidence of guilt. See, e.g., United States v. Taylor, No. 92CR322, 1992 WL 249969, at *7 n. 4, 1992 U.S. Dist. LEXIS 14272, at *13 n. 4 (S.D.N.Y. Sept. 22, 1992); Wilkes v. United States, 631 A.2d 880, 886-87 (D.C.App.1993); State v. Burris, 145 N.J. 509, 679 A.2d 121, 132-338 (1996). Instead of being rooted solely in the Fourth Amendment, the reasoning of James rests on the balancing test used in a variety of cases that have applied the exclusionary rule. The balancing test weighs the truth-seeking function of a trial court with the deterrent effect of excluding illegally obtained evidence. James, 493 U.S. at 313-14, 110 S.Ct. 648; Oregon v. Hass, 420 U.S. 714, 722-23, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); Michigan v. Tucker, 417 U.S. at 446, 94 S.Ct. 2357; Harris, 401 U.S. at 225, 91 S.Ct. 643.

In Harris, the Court determined that the test weighed in favor of admitting unwarned custodial statements for impeachment purposes to prevent defendants from giving per-jurious testimony at trial. It also held that admission of statements for such a limited purpose would do little to encourage further improper police conduct.

In James, the Court applied the balancing test to refuse to extend the impeachment exception to the exclusionary rule to all defense witnesses. In holding that such an expansion would "frustrate rather than further the purposes underlying the exelusion-ary rule," the Court reasoned that admission to impeach other witnesses would undermine 'the deterrent effect and would not promote the truth-seeking function of the court. James, 493 U.S. at 313-14, 110 S.Ct. 648.

The Court also noted that impeachment of other witnesses with the defendant's prior - statements would likely chill the defendant's ability to present his best defense. For example, the defendant may be less willing to call witnesses for fear his own prior statements will be admitted to impeach them. Id. at 314-15, 110 S.Ct. 648.

We agree with the reasoning of the Supreme Court that admission of a defendant's unwarned custodial statements to impeach defense witnesses other than the defendant would erode the deterrent effect of the exclusionary rule, while doing little to limit perjury at trial,. If a defendant's unwarned custodial statements may be admitted to impeach other defense witnesses, then the exclusionary rule would be severely eroded because a defendant's custodial statements could be admitted much more frequently at trial, and whether the defendant testifies would have no bearing on the admission of his statements. Hence, following Supreme Court precedent, we hold that the Fifth Amendment exclusionary rule prohibits the use of the defendant's unwarned statements to impeach a defense witness when the defendant does not testify.

To support its argument that James is a Fourth Amendment case that is not relevant here, the prosecution argues that the rationale of Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 LEd.2d 222 (1985), should govern here and that the court of appeals erred in not following it. In that case, the Supreme Court held that the taint or the scope 'of the "fruit of the poisonous tree" doctrine involving a Fifth Amendment violation was much narrower than that which involves a Fourth Amendment violation.

We are unpersuaded by the prosecution's argument. Since the 1954 Walder case interpreting the federal Weeks exclusionary rule, the Supreme Court's precedent has consistently applied the James balancing analysis to determine the scope of the impeachment exception irrespective of whether the statement or evidence was seized contrary to the Fourth or the Fifth Amendment.

It is the Harris-James balancing test that governs our analysis here. The Elstad case concerns the scope of the "fruit of the poisonous tree" doctrine with regard to Fifth and Fourth Amendment violations. Therefore, the holding in Elstad is irrelevant to our discussion in this case.

By rejecting the rationale of Elstad with regard to this case, we do not mean to imply that the Elstad holding does not remain in full force and effect. Recently, the Court in Dickerson, 530 U.S. 428, 444, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000), made clear that the Miranda warnings are rooted in the Constitution. In Dickerson, the Court also noted with approval the Eistad principle that "unreasonable searches under the Fourth Amendment are different from unwarned interrogation under the Fifth Amendment." Dickerson, 530 U.S. at 441, 120 S.Ct. 2326. We conclude that Elstad retains its fall vitality and disapprove of the court of appeals' opinion to the extent that the might be read to the contrary.

Independent of the constitutional doctrine discussed above, the fundamental rules of impeachment by prior inconsistent statements mandate that proof of the inconsistent statements must be uttered by the person sought to be impeached. Logic tells us that only the speaker of the statement may be impeached in this way, that is, by her own prior inconsistent statements. Hence, if the defendant does not testify, then she cannot be impeached by her own earlier inconsistent statement.

D. Exceptions To Inadmissibility Of A Defendant's Unwarned -. Custodial Statements When The Defendant Does Not Testify

Our research reveals that no federal or state court has admitted a defendant's unwarned custodial statements to impeach other defense witnesses when the defendant does not testify, with two narrow exceptions. The first occurs when a psychiatric or other expert testifies about her opinion which is based on what the defendant told her, and the defendant's unwarned custodial statements would lead to a different opinion. Wilkes, 631 A.2d at 889. The second occurs when a defense witness testifies specifically about what the defendant told her, ie., the defendant's hearsay is admitted, and he may then be impeached as a hearsay declarant with his own unwarned custodial statements. Appling v. State, 904 S.W.2d 912, 917 (Tex.App.1995). We are not called upon to address either of these circumstances here.

E. There Is No Exception To The Exclusionary Rule Which Permits Admission Of Trujillo's Unwarned Custodial Statements

Neither of the two exeeptions to the Harris-James rule of exclusion apply here. Rather, the prosecution asks us to carve out a new exception. The proposed exception would expand the Harris rule to permit use of a defendant's voluntary but unwarned custodial statements to rebut defense evidence or to impeach a witness other than the defendant. This exception would require the cere-ation of a rule that contravenes the United States Supreme Court's holding and reasoning in Harris and James. Such a rule would also require expansion of our own impeachment exeeption as set forth in Cole and Branch.

In this case, Trujillo's statements are unwarned but voluntary. His statements may only be used to impeach his trial testimony if he waives his privilege against self-incrimination. Both parties concede that Trujillo did not waive his Miranda rights during the police questioning or at trial. No evidence in the record suggests otherwise. Hence, Trujillo's statements could not be used as substantive proof of the erime charged.

We hold that it was error for the trial court to admit Trujillo's unwarned custodial statements to rebut the defense that he had cognitive disabilities and did not know that he was supposed to appear in court. We note that while the defendant's statements that he knew there was a warrant for his arrest and that he was fleeing to California are not necessarily contrary to his defense that he did not know about his court date, these unwarned statements provided ample contrary evidence for the prosecution to argue that the defense was untrue. The prosecutor told the jury that Trujillo's statements to Denver police on February 12, 1997 constituted evidence that he knew he had to be in Jefferson County Court on February 8, 1997. Permitting the use of unwarned custodial statements as substantive evidence when the defendant does not testify at trial would violate the Fifth Amendment privilege against self-incrimination.

We turn now to the prosecution's alternative argument for admissibility. Trujillo did not testify nor did Shelly Trujillo testify as to what her husband specifically told her about the February 3 court date. Thus, it would be constitutional error for the trial court to admit Trujillo's custodial statements to impeach Shelly Trujillo's testimony because the Fifth Amendment prohibits use of a defendant's unwarned custodial statements to impeach a defense witness when the defendant does not testify.

Additionally, it would be error for the trial court to admit Trujillo's custodial statements to impeach Shelly Trujillo's testimony be-ecause such a use of Trujillo's statements does not meet the definition of impeachment.

F. The Error Was Not Harmless Beyond A Reasonable Doubt

Having determined that constitutional error occurred in this case, we turn to the question of whether the error was harmless.

This case involves the type of constitutional error known as trial error-that which occurred " 'during the presentation of the case to the jury and ... may therefore be quantitatively assessed in the context of other evidence presented ...'" Blecha v. People, 962 P.2d 931, 942 (Colo.1998) (quoting Arizona v. Fulminante, 499 U.S. 279, 307-08, 111 S.Ct. 1246, 113 LEd2d 302 (1991)). An appellate court must assess the error in light of the other evidence in the case " 'to determine whether its admission is harmless beyond a reasonable doubt"" Id.

Fifth Amendment violations are subject to this trial error standard. Fulminante, 499 U.S. at 310, 111 S.Ct. 1246. The prosecution bears the burden of proving that Trujillo's unwarned custodial statements did not contribute to his conviction or that the error was harmless beyond a reasonable doubt. Blecha, 962 P.2d at 942. If there is a reasonable probability that Trujillo could have been prejudiced by the error, then it is not harmless. Id.

There are several factors that the appellate court should consider in determining whether the error was harmless: the importance of Trujillo's statements to the prosecution's case, the overall strength of the prosecution's case, whether the probative value of the statements was cumulative, and the presence or absence of corroborating or contradictory evidence on the facts asserted in the statements. Id. at 943.

One'of the two contested elements that the prosecution needed to prove in this case was that Trujillo "knowingly" failed to appear for the February 3 court date. The prosecution had two pieces of evidence to satisfy the mens rea element of the crime. The first was that Trujillo attended and participated in the scheduling hearing three months before February 3. The second piece of evidence was Trujillo's custodial statement to Denver police that he knew there was a warrant for his arrest and that he was fleeing to California.

The prosecution admitted no additional evidence to corroborate Trujillo's statements to Denver police. Trujillo did not testify. His custodial statements supplied the only direct evidence that he knew there was a warrant for his arrest or that he was fleeing to California. Additional prosecution evidence was directed toward proving Trujillo's general cognitive abilities, his wife's role in helping him, where he was supposed to be on February 3, and the extent of his participation at the scheduling hearing that was held the prior November.

The prosecution argued to the jury in closing that Trujillo's custodial statements constituted evidence of his guilt of the crime of violating bail bond conditions-that he knew he was to be in Jefferson County Court on February 3rd.

Thus, our review of the record convinces us that the admission of Trujillo's unwarned custodial statements was not harmless error beyond a reasonable doubt and that the evidence was likely prejudicial.

IV. Conclusion

For the reasons discussed, we affirm the decision of the court of appeals to reverse the judgement of the trial court and to return this case to the trial court for a new trial.

Justice COATS concurs in the judgment only, and Justice KOURLIS and Justice RICE join in the concurrence.

Justice COATS,

concurring in the judgment only:

I understand the majority to hold that if the admission of a statement in the case-in-chief against a defendant would violate the Miranda rule, that statement cannot be used even for impeachment purposes unless the defendant testifies at trial. Because it seems clear to me that the defendant's custodial statement in this case did not adequately contradict the testimony of any defense witness, I consider it unnecessary to reach the broader question addressed by the majority. Because I also have concerns about various aspects of the majority's discussion of impeachment, its failure to distinguish the bar of the Mirando rule from the Fourth Amendment exclusionary rule, and its understanding of James v. Illinois, generally, I concur only in the judgment of the court.

Initially, I take issue with the majority's distinction between "impeachment" and "rebuttal," and its contention that this case involves only the technique of impeachment by self-contradiction. See maj. op. at 319-821. I do not believe its rigid use of these terms comports with historical usage in this jurisl diction, and more importantly, it does not parallel United States Supreme Court usage in formulating the doctrines at issue here. See, e.g., United States v. Havens, 446 U.S. 620, 623, 100 S.Ct. 1912, 64 LEd.2d 559 (1980)(referring to evidence impeaching defendant's credibility as "rebuttal evidence"); Harris v. New York, 401 U.S. 222, 228, 91 S.Ct. 643, 28 L.Ed.2d 1 (Brennan, J., dissenting: characterizing Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954), as holding that exclusionary rule would not bar the Government from "rebutting" defendant's testimony with tainted evidence). Because the distinction is unnecessary to make clear the difference between evidence that merely discredits a witness and substantive evidence of guilt, I would avoid its potential impact on matters not before us by omitting it altogether. Rather than involving only impeachment by self-contradiction, this case is before us precisely because it poses the question whether custodial statements of a defendant can be used to contradict other defense witnesses.

Impeachment is not generally understood as being limited to confronting a witness with his prior inconsistent statements but includes any challenge to credibility, including showing bias or interest, proving a lack of capacity to perceive or remember, demonstrating a reputation for untrustworthiness, or contradicting the substance of a witness' statements. See John W. Strong, McCormick on Evidence § 33 (5th ed.1999)(relied on by the majority at 319). In James, the Supreme Court referred 'to "impeachment through contradictory evidence" rather than impeachment by prior inconsistent statements. James, 493 U.S. at 315, 110 S.Ct. 648. Although the contradictory evidence admitted to impeach in James was the defendant's own prior inconsistent statement, the cases upon which James relied that developed the impeachment doctrine approved of the contradiction of trial testimony by illegally obtained physical evidence. See Havens 446 U.S. at 626-27, 100 S.Ct. 1912 (admitting illegally obtained T-shirt to impeach defendant's denial of having connection to pieces of same shirt found in possession of co-conspirator); Walder, 347 U.S. at 65, 74 S.Ct. 354 (admitting evidence of unlawfully seized heroin to impeach defendant's testimony that he never possessed narcotics). Since the use of physical evidence to impeach involves neither "self-contradietion" nor prior statements of the defendant, the majority's restrictive definition of impeachment is clearly not that intended by the James court. I agree of course that if "impeachment" is defined to include only contradiction by a witness' own prior statements, by definition the defendant is the only person who can be impeached with his unwarned custodial statements. I do not, however, find the majority's postulation of such a restrictive definition helpful in deciding the intent of the Supreme Court because it predetermines the result.

Unlike the majority, I do not believe the United States Supreme Court in James intended to define the limitations imposed by the Miranda rule on the use of a defendant's statements for impeachment. James forbade the impeachment of another witness with a statement of the defendant that had been illegally obtained in violation of the Fourth Amendment's prohibition against unreasonable seizures. In doing so, it openly balanced the truth-seeking objective of our legal system against the privacy values protected by "the rule excluding evidence seized in violation of the Fourth Amendment." James 493 U.S. at 311, 319, 110 S.Ct. 648. Despite the Court's reference to both Fourth and Fifth Amendment cases in recounting the development of the impeachment doctrine, I find nothing in James to suggest that the Miranda rule, which protects the Fifth Amendment privilege against self-incrimination, necessarily bars the use of impeachment evidence to the same extent as the Fourth Amendment exclusionary rule.

The Supreme Court has distinguished the nature and purposes of the Miranda rule from those of the exclusionary rule on a number of occasions, both before and after James. See Dickerson v. United States, 530 U.S. 428, 441, 120 S.Ct. 2326, 147 LEd.2d 405 (2000)(referring to Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 LEd.2d 222 (1985), as holding that they are different); Elstad, 470 U.S. at 304-08, 105 S.Ct. 1285 (subsequent custodial statements not exelud-ed as fruit of earlier Miranda violation); Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974)(testimony of witness discovered through Miranda violation not barred by Miranda rule); cf. Withrow v. Williams, 507 U.S. 680, 686-89, 113 S.Ct. 1745, 123 LEd.2d 407 (1993)(distinguishing Miranda violation from Fourth Amendment violation for purposes of habeas corpus review based on its different purposes). While we, unlike many courts, have understood the Miranda rule to bar certain kinds of derivative evidence, much like the exclusionary rule, see People v. Breidenbach, 875 P.2d 879 (Colo.1994)(excluding marijuana plants as fruit of Miranda violation); 3 Wayne R. La-Fave, et. al., Criminal Procedure, § 9.5(b) (1999), we have also readily acknowledged their differences. See People v. T.C., 898 P.2d 20, 27 (Colo.1995)(adopting rule of Michigan v. Tucker), People v. Trujillo, 778 P.2d 1086 (Colo.1989)(adopting rule of Oregon v. Elstad ).

Unlike the exclusionary rule, which exists for the purpose of protecting privacy interests by deterring future police violations of the constitutional prohibition. against unreasonable searches and seizures, the Miranda rule protects the privilege against self-incrimination by barring the use of unwarned custodial statements to incriminate the defendant. Although clearly a constitutional rule that cannot be overruled by legislation, see Dickerson, 530 U.S. at 431-32, 120 S.Ct. 2326, the Miranda rule's precise theoretical basis and scope remain somewhat unclear. LaFave § 6.5(e)(Supp.2002). With regard to admission solely for impeachment purposes rather than as substantive evidence of guilt, it is not difficult to envision the imposition of limitations on the use of voluntary statements acquired without the benefit of the prophylactic Miranda warnings that are different from the limitations imposed on the use of evidence obtained by unconstitutional searches and seizures. In the latter context, the extent to which impeachment is allowed depends largely upon its impact on the deterrent effect of the exclusionary rule. In the former context, it is not clear that impeachment use of a defendant's statements is incriminating at all. Particularly, with respect to prophylactic rules, the applicability of which is peculiarly within the power of the Supreme Court, I am reluctant to announce a rule excluding more evidence than has already been mandated by that Court.

In any event, I do not believe this case requires us to anticipate the Supreme Court. Impeachment by illegally obtained evidence, even of the defendant himself, is permissible only if it presents a direct conflict or contradiction with the witness' trial testimony. See LeMasters v. People, 678 P.2d 538, 543 (Colo.1984). In the case before us, the defendant's statement that he actually knew he was to appear in court on the day in question in no way conflicted with or made any less true or accurate his mother's testimony concerning his history of poor memory or his wife's testimony about her usual practice of recording his court dates, which was not done in this case. While the testimony of both witnesses would clearly have been less probative of the defendant's lack of knowledge in light of his admission, neither witness contradicted the defendant's statement or testified to a contradictory statement of the defendant.

To determine that the evidence in this case was erroneously admitted, it is therefore sufficient that the defendant's pre-trial statement, made inadmissible in the prosecution's case-in-chief by the Miranda rule, could be admitted for impeachment purposes only to the extent that it was directly contradictory of trial testimony. Defined this narrowly, impeachment of another witness with the defendant's excluded custodial statements should rarely become an issue unless the testimony involves contradictory representations of the defendant himself. As to that eventuality, even the majority appears to have reserved judgment. Maj. op. at 825. Given the absence of any pressing need and the remaining uncertainty surrounding application of the Miranda rule, I see no merit in gratuitously venturing a prediction about the Supreme Court's ultimate resolution of this question.

Because I believe the defendant's pre-trial custodial statement was not directly contradictory of the testimony of any defense witness, I would affirm the court of appeals' order to remand for a new trial, Because I also consider various aspects of the majority's rationale both questionable and unnecessary, I concur in the judgment only.

Justice KOURLIS and Justice RICE join in the concurring opinion.

      . We granted certiorari on the question: ''Whether a defendant's voluntary statement given before Miranda warnings can be used to impeach a witness other than a testifying defendant."

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . As discussed at length below, the admissibility of Trujillo's statements is a constitutional question. The constitutional issues preclude using these illegally obtained statements as contradiction evidence other than self-contradiction as established by Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 LEd.2d 1 (1971).

      . Section 16-10-201, 6 C.R.S. (2001), provides: Inconsistent statement of witness-competency of evidence (1) Where a witness in a criminal trial has made a previous statement inconsistent with his testimony at the trial, the previous inconsistent statement may be shown by any otherwise competent evidence and is admissible not only for the purpose of impeaching the testimony of the witness, but also for the purpose of establishing a fact to which his testimony and the inconsistent statement relate, if;
      (a) The witness, while testifying, was given an opportunity to explain or deny the statement or the witness is still available to give further testimony in the trial; and
      (b) The previous inconsistent statement purports to relate to a matter within the witness's own knowledge.

      . Miranda addressed other rights as well, for example the right to counsel during interrogation. However, only the Fifth Amendment privilege against compulsory self-incrimination is at issue here.

      . The only Colorado case to consider the issue of admitting a defendant's unwarned custodial statements when the defendant does not testify is People v. Evans, 630 P.2d 94 (Colo.App.1981). The court of appeals held in that case that such statements may not be admitted against the defendant as substantive rebuttal evidence. Evans, 630 P.2d at 96. The court relied on the Harris line of cases which establishes that a defendant's unwarned custodial statements may only be admitted for impeachment, not substantive evidence. Id.

      . In Tucker, the defendant was not given full Miranda warnings and his statements to police « were therefore excluded, However, during interrogation he had named an alibi witness who later gave the police information that incriminated the defendant. The defendant testified at trial and the alibi's testimony was admitted to impeach the defendant. Tucker, 417 U.S. at 437, 94 S.Ct. 2357.
      The Supreme Court upheld the trial court. It balanced the deterrent rationale of the exclusionary rule with the truth-seeking function of the courts to determine that the alibi's testimony could be admitted to expose the defendant's per-jurious testimony. Id. at 446-49, 94 S.Ct. 2357.

      . The prosecution argues that State v. Walton, 41 S.W.3d 75 (Tenn.2001), suggests a different result than our holding in this case. To some extent this case suggests a constitutional theory differing from the reasoning we adopt here. However, the question of law and factual back ground before that court distinguishes it from this case. Walton considered whether the derivative evidence rule applies to physical evidence seized as a result of interrogation that violated the Fifth Amendment. Id. at 78.
      Without the benefit of Miranda warnings, Walton made incriminating statements and showed officers the location of the stolen property when law enforcement officers went to his house to investigate burglaries. Id. at 78-79.
      After a grand jury proceeding in which Walton's statements and the property were admitted, he was indicted on burglary charges. He then filed a motion to suppress the statements and physical evidence obtained by the officers. The motion to suppress was denied and he pleaded guilty to the charges, reserving a certified question of law regarding the motion to suppress. Id. at 79-81.
      The Tennessee Supreme Court held that Walton's Fifth Amendment rights had been violated because he was in custody and interrogated without Miranda warnings. It also held that all custodial statements made by the defendant were inadmissible, but the physical evidence obtained as a result of the interrogation was admissible against him. Id. at 95-96.
      Walton deals with the scope of Miranda rights as applied to physical evidence obtained as a ''fruit of the poisonous tree." The present case considers the scope of the impeachment exception to the exclusionary rule with regard to oral statements when the defendant does not testify.
      Walton follows the Supreme Court's reasoning in Elstad to reach a result with which we do not take issue. See infra, pages -----.

      . Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914).

      . 493 U.S. 307, 110 S.Ct. 648, 107 LEd.2d 676 (1990).

      . Perhaps most prominently, these terms have been at the heart of a debate over the obligation to endorse witnesses, involving pronouncements that are arguably inconsistent. See People v. Cobb, 962 P.2d 944, 953 (Colo.1998) (Kourlis, J., dissenting: finding a distinction but characterizing it as "a slippery one," based in part on the collateral versus direct nature of the evidence); People v. Terry, 720 P.2d 125, 132 (Colo.1986) (Vollack, J., concurring in part and dissenting in part: relying on People v. Vollentine, 643 P.2d 800 (Colo.App.1982), distinguishing "rebuttal testimony" that is introduced to "refute a defense," from "rebuttal testimony" that is "introduced solely to impeach"); People v. Muniz, 622 P.2d 100, 102-03 (Colo.App.1980) (distinguishing "rebuttal testimony which refutes alibi evidence and impeachment testimony which does not contradict alibi evidence but does attack the credibility of defense witnesses on collateral matters," in that case, by attacking their veracity concerning the activities of the defendant before the crime); see also Palmer v. People, 162 Colo. 92, 424 P.2d 766 (1967); Schreiner v. People, 95 Colo. 392, 36 P.2d 764 (1934); Ingles v. People, 90 Colo. 51, 6 P.2d 455 (1931); People v. Hamrick, 624 P.2d 1333 (Colo.App.1979), aff'd, 624 P.2d 1320 (Colo.1981).

      . Unlike the majority, see maj. op. at 323 n. 7, I understand Tucker not as an impeachment case, but as holding that the Miranda rule does not extend to the testimony of witnesses discovered through voluntary but unwarned custodial interrogation. See People v. T.C., 898 P.2d 20, 27 (Colo.1995).


source: Caselaw Access Project

author: Judge NEY.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Bolivar PINEDA-ERIZA, Defendant-Appellant.
    No. 98CA0721.
    Colorado Court of Appeals, Div. III.
    March 1, 2001.
    As Modified on Denial of Rehearing June 7, 2001.
    Certiorari Denied July 1, 2002.

      Ken Salazar, Attorney General, M. Catherine Duba, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Karen M. Gerash, Deputy State Public Defender, Julie Iskenderian, Deputy State Public Defender, Denver, CO, for Defendant-Appellant.
   Opinion by

Judge NEY.

Defendant, Bolivar Pineda-Eriza, appeals from the judgment of conviction entered on a jury verdict finding him guilty of: possession with intent to sell a controlled substance; possession; conspiracy to sell; special offender/importation; and possession with intent to sell greater than 28 grams of a controlled substance. We remand the cause to vacate defendant's conviction and sentence for possession with the intent to sell greater than 28 grams of a controlled substance, and otherwise affirm.

The trial court initially sentenced defendant on five substantive counts to: 12 years of incarceration for possession with intent to sell a controlled substance; 12 years for possession; 12 years for conspiracy to sell; 24 years for special offender/importation; and 12 years for possession with intent to sell greater than 28 grams of a controlled substance.

Subsequently, the trial court found that it erroneously had treated the special offender/importation charge as a substantive offense, rather than a penalty enhancer, under Colo. Sess. Laws 1992, ch. 71, § 18-18-407(1) at 361. Accordingly, the court vacated the special offender/importation conviction and enhanced defendant's sentence on the substantive offense of possession with intent to sell a controlled substance to 24 years and one day. This appeal followed.

I.

Initially, defendant contends that his conviction for possession with intent to sell greater than 28 grams of a controlled substance must be vacated because the jury's finding related to this charge was a sentence enhancer "as opposed to a substantive offense." We agree.

A.

The People concede that the jury's verdict finding that defendant possessed over 28 grams of cocaine was the basis of a sentence enhancement, as opposed to a substantive offense, pursuant to § 18-18-405(8)(a)(D), C.R.S.2000. See People v. Salcedo, 985 P.2d 7 (Colo.App.1998) (vacating the defendant's substantive conviction and sentence for possession of 28 grams or more of cocaine), rev'd on other grounds, 999 P.2d 833 (Colo.2000). The People therefore agree that this substantive conviction must be vacated, but the parties disagree as to how this sentence enhancer should be applied to defendant's convictions.

B.

Defendant contends that the § 18-18-405(8)(a)(I) sentence enhancer could only be applied to the possession with intent to sell conviction. However, because that conviction has already been enbkhanced by § 18-18-407(1) (special offender/importation) and because § 18-18-405(8)(a)(I) provides that it is not applicable in that situation, defendant contends that the sentence enhancement for his possession of over 28 grams of cocaine should also be vacated.

The People do not dispute that here, the sentence enhancer for possessing more than 28 grams of cocaine cannot be applied to defendant's possession with intent to sell conviction. Rather, they assert that it should be applied to one of defendant's other substantive convictions, either possession or conspiracy to possess. We reject that assertion.

Section 18-18-405(8)(a) prowdes, in pertinent part, that:

Except as otherwise prov1ded in section 18-18-407 relating to special offenders, any person convicted ... for knowingly manufacturing, dispensing, selling, distributing, possessing, or possessing with intent to manufacture, dispense, sell, or distribute, or inducing, attempting to induce, or conspiring with one or more other persons, to manufacture, dispense, sell, distribute, possess, or possess with intent to manufacture, dispense, sell, or distribute an amount that is ...
(I) At least twenty-five grams or one ounce but less than four hundred fifty grams of any material ... that contains a schedule I or schedule II controlled substance ... shall be sentenced to the department of corrections for at least the minimum term of incarceration in the presumptive range provided for such offense. ...

Here, the record indicates that defendant was charged with unlawful possession with intent to sell 28 grams or more of cocaine. Thus, defendant was only on notice that the § 18-18-405(8)(a)(I) sentence enhancer was ° applicable to the intent to sell charge.

As a result, even if the § 18-18-405(8)(a)(I) sentence enhancer could be applied to a different substantive offense as the People propose, the charge only allowed for the 28 grams or more of a controlled substance to be applied to the possession with intent to sell conviction of which defendant had notice in the charging document. Hence, the § 18-18-405(8)(a)(I) sentence enhancer cannot apply to either of defendant's other substantive convictions.

And, therefore, we conclude that defendant's conviction and sentence for possession with intent to sell greater than 28 grams of a controlled substance must be vacated, and may not be applied as a sentence enhancer to either defendant's possession conviction or his conspiracy conviction. See People v. Esquivel-Alaniz, 985 P.2d 22 (Colo.App.1999).

IL

Defendant also contends, for the first time on appeal, that his conviction and sentence as a special offender/importation under § 18-18-407(1) must be reversed because the jury did not find that he "knowingly" imported cocaine into the state. We disagree.

A division of this court has previously found that a mens rea requirement is neither included in nor implied by the special offender statute. People v. Vazquez, 768 P.2d 72l (Colo.App.1988). Additionally, we are not persuaded by defendant's argument, based on legislative history, that the mens rea of "knowingly" was intended by the General Assembly to be applied to all the provisions of the Uniform Controlled Substance Act.

Because the special offender statute concerns a sentence enhancement, and not a substantive offense, see Vega v. People, 893 P.2d 107 (Colo.1995), we conclude that it is not required to contain a mens rea requirement. See People v. Ramirez, 997 P.2d 1200, 1205 (Colo.App.1999) (cert. granted April 24, 2000) ("[olnee a jury has determined that a defendant possessed the mental state required for conviction of the substantive offense, an enhanced sentence must be imposed whether or not the defendant fully knew of the circumstances leading to the special offender finding"); People v. Vazquez, supra.

IIL

Defendant next contends that the trial court erred in concluding that, as a special offender, the minimum mandatory enhanced sentence defendant could receive for possession with intent to sell a controlled substance was 24 years and one day. Again, we disagree.

At the time of the commission of these offenses, the finding of a special offender status required that the trial court:

sentence the defendant to a term greater than the presumptive range for a class 2 felony but not more than twice the maximum term for a class 2 felony authorized in the presumptive range for the punishment of such felony.

Colo. Sess. Laws 1992, ch. 71, § 18-18-407(1) at 361. Within the presumptive range, a class 2 felony is punishable by a sentence of 8 to 24 years. Section 18-1-105(1)(a)(V)(A), C.R.S.2000. Thus, the trial court found that the minimum term of enhanced sentencing in this case was 24 years and one day.

Defendant argues that, although this may be the correct interpretation of that version of § 18-18-407(1), the statute also may be interpreted as mandating an aggravated sentence (a term of incarceration of at least the midpoint in the presumptive range) when read in conjunction with the language requiring a term of years not greater than twice the maximum presumptive range. Relying upon People v. Leske, 957 P.2d 1030 (Colo.1998), he argues that the rule of lenity applies, and thus the amblgmty must be resolved in h1s favor.

Our review of the applicable version of § 18-18-407(1) does not reveal any ambiguity, and thus the rule of lenity does not apply. The statute requires that the enhanced sentence be, at a minimum, "greater than the presumptive range for a class 2 felony." But, the sentence cannot be "more than twice the maximum term for a class 2 felony authorized in the presumptive range for the punishment of such felony." Thus, the applicable range of punishment for an enhanced class 2 felony was greater than 24 years, and up to a maximum of 48 years. Defendant's sentence of 24 years and one day falls at the lowest point within that required range.

Therefore, we conclude that the language of the statute is not ambiguous, and the trial court did not err in sentencing defendant.

IV.

Defendant also contends that the trial court erred in concluding that it had no authority to reconsider his sentence in light of the lesser penalties provided in the amended version of the special offender statute. We find no error.

Defendant committed the crimes at issue on February 12, 1997 and, as a result, he was sentenced under the version of § 18-18-407(1) discussed above. However, § 18-18-407(1) was subsequently amended, effective about four months later on July 1, 1997. The effect of the amendment was to reduce the minimum sentence for an enhanced class 2 felony from 24 years and one day, to 8 years. See §§ 18-18-407(1), C.R.8.2000 (requiring a sentence of "at least the minimum term of years within the presumptive range for a class 2 felony") & 18-1-105(1)(a)(V)(A) (presumptive range is 8 to 24 years).

Defendant argues that when, as here, there has been a significant change in the law applied to the applicant's sentence, the changed legal standards should be applied retroactively in the interests of justice. See § 18-1-410(10)(0(I), (C.R.8.2000 (regarding post-conviction relief); People v. Thomas, 185 Colo. 395, 525 P.2d 1136 (1974).

The trial court determined that it did not have any discretion to reduce defendant's sentence under the amended statute, because the effective date clause of the amendment specifically provides that it applies only to offenses committed on or after July 1, 1997. See Colo. Sess. Laws 1997, ch. 264, § 18-18-407(1) at 1550. A defendant is not entitled to the ameliorative effects of amendatory legislation if the legislature has not indicated its intent to require retroactive application thereof. People v. McCoy, 764 P.2d 1171, 1174 (Colo.1988) ("[when the language of a statute is clear, we must give the statute effect as written"); People v. Macias, 631 P.2d 584 (Colo.1981).

Defendant, by referring us to the legislative history, argues that the retroactive application of the amendatory legislation would not be contrary to the legislative intent in his particular case. However, nothing in the statute even suggests a retroactive application. Rather, it is specific that the amenda-tory legislation is to have prospective application only. See People v. McCoy, supra.

Thus, because defendant committed the crimes at issue in February 1997, the trial court did not have discretion to sentence him pursuant to the amended special offender statute, which specifically provided that it applies only to offenses committed on or after July 1, 1997.

V.

Finally, defendant contends that the trial court erred in denying his motion for judgment of acquittal because the evidence presented was insufficient to sustain his convictions. We again find no error.

Narcotic detectives at Denver International Airport stopped defendant and a woman standing near him on the basis of their suspicious behavior after they disembarked from a flight from Los Angeles. After he was searched, defendant was released. The officers detained the woman, and 2.2 pounds of cocaine was found hidden under her clothing.

'The woman indicated that the cocaine was not hers and that it belonged to defendant. Defendant was subsequently arrested, but denied having any connection with the woman or with the cocaine. At trial, the woman testified, in exchange for favorable treatment, that defendant had offered her $1000 to carry the package to Denver.

Defendant specifically argues that the prosecution failed to establish, beyond a reasonable doubt, that he possessed or exercised control over any amount of cocaine, or that he agreed to or intended to promote or facilitate the woman's possession thereof. We are not persuaded.

In ruling on a motion for judgment of acquittal, the issue before the trial court is whether relevant evidence, both direct and cireumstantial, is substantial and sufficient to support the conclusion by a reasonable mind that the defendant is guilty of the charges beyond a reasonable doubt. People v. Stark, 691 P.2d 334 (Colo.1984). When the sufficiency of the evidence is challenged, an appellate court must review all the evidence in the light most favorable to the prosecution; in so doing, the court roust draw all inferences most favorable to the jury's verdict. People v. Trujillo, 190 Colo. 45, 543 P.2d 523 (1975).

Here, the evidence, viewed as a whole and in the light most favorable to the prosecution, is sufficient to support the jury's verdict that defendant had control over the cocaine as a complicitor. Possession was properly defined in a jury instruction as "the immediate and knowing dominion or control over the object or the thing allegedly possessed." Consistent with that definition, the woman testified at trial that defendant paid her the money to carry the cocaine, he told her where to find the cocaine and how to hide it, he supplied her with a plane ticket, and then he told her what to do when they arrived in Denver. .

We therefore conclude that the evidence was sufficient to support the jury's determination that defendant possessed the cocaine, and, in turn, that the trial court did not err in denying defendant's motion for acquittal.

The cause is remanded to the trial court with directions to vacate defendant's convietion and sentence for possession with intent to sell 28 grams or more of a controlled substance. The judgment is affirmed in all other respects.

MARQUEZ and NIETO, JJ., concur.


text:
    Sandra C. MILLER, Petitioner, v. The INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF COLORADO, Saint Thomas Moore Hospital, and Colorado Hospital Association Trust, Respondents.
    No. 00CA1739.
    Colorado Court of Appeals, Div. III.
    May 24, 2001.
    Rehearing Denied Oct. 18, 2001.
    Certiorari Denied June 24, 2002.

      Steven U. Mullens, P.C., Steven U. Mul-lens, James A. May, Pueblo, CO, for Petitioner.
    Ken Salazar, Attorney General, Mark W. Gerganoff, Assistant Attorney General, Denver, CO, for Respondent Industrial Claim Appeals Office.
    Clifton, Hook & Bovarnick, P.C., Clyde E. Hook, Harvey D. Flewelling, Denver, CO, for Respondents Saint Thomas Moore Hospital and Colorado Hospital Association Trust.
   Opinion by

Judge NEY.

In this workers' compensation proceeding, Sandra C. Miller (claimant) seeks review of the final order of the Industrial Claim Appeals Office (Panel) insofar as it sets aside a penalty imposed under § 8-48-401(2)(a), C.R.98.2000, against St. Thomas Moore Hospital and the Colorado Hospital Association Trust (collectively respondents) for failure to pay. medical benefits. We set aside the Panel's order and remand for reinstatement of the penalty.

Claimant sustained compensable injuries in 1993 and, in 1997, received an award of benefits for permanent partial disability and future medical treatment. In 1998, respondents filed a medical utilization review (MUR) of claimant's medical care. Two of the three MUR panel members opined that the services provided by the authorized treating physician were not related to the industrial injuries claimant had . suffered. Nevertheless, a majority of the MUR panel did not recommend a change of physician order, and there also was no unanimous recommendation for a retroactive denial of payment under § 8-48-501(8)(c), C.R.98.2000.

Thereafter, respondents sent the following correspondence to claimant and her treating physician:

This communication is notification to all parties that further medical benefits are closed based on [the] Director['s] order of April 5, 1999[sic]. This order is pursuant to the Utilization Review and the majority findings that medical treatment as of April 8, 1997 (if not prior to this date) has not been "reasonably necessary to cure and relieve the claimant of the effects of the on the job injury". Previously authorized medical expenses will be paid to April 5, 1999 since retroactive denial of services was not unanimously ordered by the U.R. panel nor the Director. No further medical treatment will be authorized nor paid under the above referenced claim. [sic]

Claimant applied for a hearing, seeking medical benefits and an order imposing penalties for respondents' failure to authorize further medical treatment. The ALJ credited the opinion of the treating physician and rejected the contrary opinions of the two MUR panel members who had found the treatment unrelated to claimant's industrial injuries. The ALJ determined that the care and treatment proposed by the authorized provider was reasonable and necessary to maintain claimant's condition and that respondents were liable for the expense of it.

The ALJ further found that respondents willfully refused further medical care as contemplated under both the prior award of benefits and the Director's order in the MUR proceeding, and they knew or should have known that their conduct was unreasonable. The ALJ, therefore, ordered respondents to pay a penalty equal to eight percent of the wrongfully withheld benefits pursuant to § 8-43-401(2)(a).

Respondents petitioned for review by the Panel, contesting both the award of medical benefits and the imposition of the penalty. The Panel upheld the award of medical benefits. However, it set aside the penalty determining that, as a matter of law, respondents' conduct was not "wrongful" within the meaning of § 8-48-401(2)(a).

Claimant now brings this appeal seeking to have the penalty restored. She contends that the Panel erred in reversing the penalty based upon its incorrect redetermination of the ALJ's factual finding and the resulting incorrect conclusion that respondents' actions were not illegal, unjust, or wrongful as a matter of law.

We conclude that the Panel erred in overturning the ALJ's finding that the withholding of treatment authorization was unreasonable, by determining that such withholding was not "wrongful," under § 8-48-401(2)(a), as a matter of law.

As relevant here, § 8-48-401(2)(a) provides that:

If any insurer or self-insured employer willfully delays payment of medical benefits for more than thirty days or willfully stops payments such insurer or self-insured employer shall pay a penalty to the division of eight percent of the amount of wrongfully withheld beriefits. (emphasis added) *

"Willful" has been interpreted by a division of this court as conduct that is the result of deliberate intent; "wrongful" means unlawful or unjust action. Sears v. Penrose Hospital, 942 P.2d 1345 (Colo.App.1997), overruled in part on other grounds, Holliday v. Bestop, Inc., 23 P.3d 700 (Colo.2001).

It is undisputed here that respondents' refusal to provide additional medical benefits was deliberate and, therefore, willfal. Thus, the critical question in this matter is whether respondents' failure to authorize treatment also was wrongful.

I.

In Sears v. Penrose Hospital, supra, the ALJ had found that the employer acted "reasonably under the cireumstances." Thus, a division of this court concluded that the conduct was not willful, because it was not deliberate, nor could it have been wrongful, because it was not unjust or unlawful.

In our view, it would follow that a factual finding of unreasonableness with regard to the withholding of treatment authorization is tantamount to a determination that the insurer's conduct was unjust or unlawful and, therefore, was wrongful under the statute. See Sears v. Penrose Hospital, supra.

Although the ALJ here did not enter an explicit finding that respondents' conduct was wrongful, the ALJ found that respondents knew or should have known their conduct was unreasonable, and, as a result, they violated their obligation to provide necessary medical care to claimant as recommended by her authorized attending physician.

Hence, the findings concerning the unreasonableness of respondents' actions satisfy us that the ALJ addressed the necessary element of wrongfulness and found that it existed.

IL

We note that in Peterman v. State Farm Mutual Automobile Insurance Co., 8 P.3d 549 (Colo.App.2000), a division of this court concluded that a "wrongful" withholding of insurance proceeds, for the purposes of assessing interest thereon, requires only a failure to pay a benefit when due after a final determination is made of such obligation.

However, whether a legitimate controversy exists to support a penalty based on an insurer's conduct must be evaluated as of the time of the conduct. Otherwise, the "wrongful" component of such assessment would be a matter of strict liability after the fact; that is, the withholding always would be wrongful ab initio onee a final determination has been made that the claimant was entitled to the benefits withheld, and the insurer would be exposed to liability for penalties in every such case.

For that reason, while a determination of wrongful withholding for the purpose of assessing interest on withheld insurance benefits only requires a showing of a failure to pay benefits where there was an obligation to do so, Peterman v. State Farm Mutual Automobile Insurance, supra, in the case of an after-the-fact assessment of a penalty, as here, a finding of wrongful withholding must include a determination that the insurer's conduct was unlawful, unjust, or unreasonable, at the time of withholding.

TIL

Finally, we have reviewed the record and conclude there is substantial evidence to support the ALJ's finding of unreasonable conduct by the respondents.

A reviewing court must uphold the ALJ's factual findings under § 8-48-401(2)(a), if supported by substantial evidence and the plausible inferences drawn therefrom. The Panel and reviewing courts are bound to apply the substantial evidence test in determining whether the evidence supports the ALJ's findings of fact. Metro Moving & Storage Co. v. Gussert, 914 P.2d 411 (Colo.App.1995).

Hence, both the Panel and this court must view the evidence as a whole and in the light most favorable to the prevailing party, and we must also defer to the ALJ's credibility determinations and resolution of conflicts in the evidence. See Metro Moving & Storage Co. v. Gussert, supra.

The ALJ concluded that respondents refused to authorize further medical care, despite the order of the Director declining to enter either a change of physician order or a retroactive denial of payment. The ALJ also noted that respondents' refusal to authorize care prevented claimant's treating physician from providing any recommended treatment after August 4, 1998, and in essence, functioned as a complete termination of all medical care.

Although the ALJ could have drawn conflicting inferences from the medical evidence, the question to be resolved was factual in nature. We conclude that the finding of unreasonableness made by the ALJ was supported by the opinion of the treating physi-clan, in combination with the cireumstances surrounding the refusal to authorize.

Thus, we hold that the Panel erred in finding that respondents' conduct was not wrongful as a matter of law and in setting aside the ALJ's award of penalties against respondents. In view of our disposition, we need not address claimant's evidentiary challenges.

The Panel's order regarding the imposition of the penalty is set aside, and the cause is remanded with directions to reinstate the penalty.

JUDGE MARQUEZ and JUDGE NIETO concur.


author: Judge STERNBERG.

text:
    Thurman TAIT, deceased, By and Through the personal representative of his estate, Tanice A. TAIT, Plaintiff-Appellee and Cross-Appellant, v. HARTFORD UNDERWRITERS INSURANCE COMPANY, Defendant-Appellant and Cross-Appellee.
    No. 00CA1754.
    Colorado Court of Appeals, Div. I.
    Sept. 13, 2001.
    Rehearing Denied Nov. 1, 2001.
    Certiorari Denied July 1, 2002.

      Levy, Morse & Wheeler, P.C., Mare C. Levy, Wendy E. Band, Englewood, CO, for Plaintiff-Appellee and Cross-Appellant.
    Lasater & Allen, P.C;; J. Scott Lasater, Littleton, CO; Kennedy & Christopher, P.C., John R. Mann, Denver, CO, for Defendant, Appellant and Cross-Appellee.
   Opinion by

Judge STERNBERG.

Defendant, Hartford Underwriters Insurance Company (insurer), appeals the trial court's award of damages and interest to Thurman Tait (insured). Insured cross-appeals. We affirm in part, reverse in part, and remand with directions.

In October 1999, insured, who was covered under an automobile policy with insurer, was involved in an automobile accident. He filed a claim with insurer for Personal Injury Protection (PIP) benefits. Insured was eighty years old and in poor health at the time of the accident. He died after the trial, during the pendency of this appeal.

Because of the manner in which insurer handled insured's claim, insured filed suit against insurer alleging willful and wanton breach of contract pursuant to § 104-701, et seq., C.R.S.2000, contending insurer breached its duty of good faith and fair dealing. These claims were joined with insured's claims against the other driver involved in the accident and that driver's employer. Based on his age and medical condition, insured moved for a preferential trial date under § 13-1-129, C.R.9.2000. The court granted the motion and set an early trial date.

Prior to trial, insured submitted a Notice to Insurer of Amount Claimed that claimed $14,424.92 in unpaid PIP benefits, as well as "Taldditional essential services [that] continue to be incurred and submitted for payment."

Three weeks before trial, insurer attempted to remove the case to the federal district court. Finding that it lacked jurisdiction, that court refused to accept the case and remanded the action to the state trial court, stating that although insured had settled with the other driver and his employer, there were nondiverse defendants 'that had not been dismissed from the action. Thereafter the trial court bifurcated insured's claims against insurer from those against the other defendants. One week before trial, insurer again attempted to remove the case to the federal district court. Finding once again that it lacked jurisdiction despite bifurcation of the nondiverse defendants, that court declined to accept the case. In so doing the federal judge stated that insurer's removal attempts appeared motivated by its desire to defeat the accelerated trial date.

The case proceeded to trial before a jury, which found for insured on his PIP claim, awarding him $15,000 in unpaid benefits, $1,280.20 in prejudgment interest on these benefits, and $50,000 for "any other breach of contract." Because the jury had found insurer's breach of contract to be willful and wanton, the court added these amounts together, for a total of $66,280.20, and trebled this amount for a total of $198,840.60 pursuant to § 10-4-708(1.8), C.R.S8.2000. In addition, the jury found for insured on his breach of duty of good faith and fair dealing claim and awarded insured $100,000 in economic and $50,000 in noneconomic damages, together with $5,104.11 in interest. The jury also found that insurer's conduct met the statutory standard for exemplary damages pursuant to § 18-21-102(1)(a), C.R.S.2000, and awarded insured $200,000. The trial court reduced that amount to $155,104.11, the amount of compensatory damages plus prejudgment interest. Thus, the trial court entered a judgment for insured in the amount of $509,048.82, together with costs in the amount of $16,611.93.

Insurer moved for a judgment notwithstanding the verdict, to amend the judgment pursuant to C.R.C.P. 59, for a remittitur, or for a new trial on damages. Insured moved to increase the award of exemplary damages based on insurer's conduct during litigation. The court denied insurer's motion, and granted insured $1,894.35 in statutory interest on the $50,000 award for "any other breach of contract" pursuant to § 104-708, CRS. 2000. Pursuant to § 13-21-101, the court increased the exemplary damages award to the original $200,000 awarded by the jury. In support of this increase, the court focused on insurer's litigation conduct, specifically, its second unsuccessful attempt to remove the action to federal district court.

Thus, the judgment breaks down as follows:

$ 198,840.60 = benefits $15,000 unpaid/late PIP
$1,280.20 interest
$50,000 "any other breach of contract"
(Added together and multiplied times three pursuant to § 10-4-708(1.8))
$ 1,894.35 Statutory interest on $50,000 added post-trial pursuant to § 10-4-708
$ 155,104.11 = $100,000 Economic Damages
$50,0000 Non-Economic Damages
$5,104.11 Interest
$ 200,000.00 = Exemplary damages after post-trial increase
$16,611.93 = Costs
$572,450.99 = Total

Insurer appeals, and insured cross-appeals.

I.

Insurer contends that the trial court erred in not reducing or vacating the jury's awards of $15,000 in unpaid PIP benefits, $50,000 for "any other breach of contract," and $100,000 for economic damages. We disagree.

The amount of damages to be awarded is within the province of the jury and will not be disturbed unless it is completely unsupported by the record. Jackson v. Moore, 883 P.2d 622 (Colo.App.1994). In addition, an appellate court will uphold a jury's approximation of damages if based upon reasonable inferences drawn from substantial evidence that provided a reasonable basis of computation. Houser v. Eckhardt, 506 P.2d 751 (Colo.App.1972)(not selected for official publication), aff'd sub nom. Security Insurance Co. v. Houser, 191 Colo. 189, 552 P.2d 308 (1976); see also Brown v. Alkire, 295 F.2d 411, 416 (10th Cir.1961).

A.

We reject insurer's contention that the jury's award of $15,000 for unpaid PIP benefits must be reduced to the actual amount of PIP benefits claimed by insured in his notice, $14,424.92, because there is no evidence in the record to support the additional $575.08.

To recover insurance benefits pursuant to § 10-4-708(1), C.R.S.2000, an insured must present to the insurer "reasonable proof of the fact and amount of expenses incurred." See Klein v. State Farm Mutual Automobile Insurance Co., 948 P.2d 43, 48 (Colo.App.1997). .If an insurer fails to pay such benefits when due, an insured is entitled to bring an action in contract to recover such benefits. See § 10-4-708(1). In a breach of contract action, damages must be established with reasonable certainty by a preponderance of evidence. See, eg., Interbank Investments, LLC. v. Vail Valley Consolidated Water District, 12 P.3d 1224 (Colo.App.2000).

As insured argues,; the record supports the additional $575.08 for additional essential services rendered after the filing of his notice. In light of the evidence presented at trial, we will not disturb the jury award in this regard because it is supported by the record and is neither excessive nor unjust. See, e.g., Sheron v. Lutheran Medical Center, 18 P.3d 796 (Colo.App.2000).

B.

Insurer contends that the jury award of $50,000 for "any other breach of contract" must be reversed because insured did not prove damages for "any other breach of contract" and because the trial court's. instruction to the jury on this claim was not supported by the evidence. We disagree.

There was evidence in the record of damages, and as insured argues, insurer is barred from challenging this jury instruction on appeal because it failed to object on this basis to this instruction at trial or to tender an additional instruction to cure, or clarify the issue. An appellate court will not disturb the trial court's ruling if the complaining party failed either to tender a desired jury instruction or to object to the instruction given. See Bayless v. Milstein, 765 P.2d 1069 (Colo.App.1988). Failure to object to a jury instruction or to seek clarification at trial precludes one from attacking the instruction on appeal. See Mailloux v. Bradley, 643 P.2d 797 (Colo.App.1982); see also Caldwell v. Kats, 193 Colo. 384, 567 P.2d 371 (1977).

C.

Insurer argues that the $100,000 award for economic damages is not supported by the evidence because insured's medical expenses at the time of the trial were approximately $12,000, and because insured presented no expert testimony or other evidence concerning lost wages, lost business opportunity, lost business value, diminished earning capacity, or future expenses. We are not persuaded.

In contrast to the damages discussed above, the $100,000 award for economic damages was awarded pursuant to the jury's finding that insured breached its duty of good faith and fair dealing, a tort theory that provides for traditional tort damages, which may exceed policy limits. See Ballow v. PHICO Insurance Co., 878 P.2d 672 (Colo.1994); Farmers Group, Inc. v. Trimble, 691 P.2d 1138 (Colo.1984).

The jury instruction on future economic losses required the jury to consider, in pertinent part, "any economic losses which [insured] has had or will probably have in the future, including, unpaid medical, rehabilitative, or essential services, if any." It appears the jury followed this instruction.

We disagree with insurer that insured's. past medical expenses are the benchmark for determining his reasonable future medical expenses. Moreover, given that insured presented evidence of his injuries and medical expenses, it was not unreasonable for the jury to infer that insured would incur $100,000 in medical expenses in the future. While we recognize that this amount is a rough approximation, it is necessarily so. Cf. Stewart v. Rice, 25 P.3d 1233 (Colo.App.2000)(cert. granted July 2, 2001)(jury award for a nine-year-old's lost future earning capacity upheld on evidence of injuries, despite no evidence on amount or measure of loss).

II.

Both parties question the meaning and seope of § 10-4-708(1.8). Insurer argues that the section provides for the trebling of only the unpaid PIP benefits, not the $1,280.20 in prejudgment interest or the $50,000 for "any other breach of contract." We agree. We disagree with insured's interpretation that the section provides for a treble amount of damages in addition to the original amount of damages.

Section 10-4-708(1.8) states fin relevant part:

The insurer shall pay interest to the insured on the benefits recovered at a rate of eighteen percent per annum, with interest commencing from the date the benefits recovered were due. In addition, in the event of willful and wanton failure of the insurer to pay such benefits when due, the insured shall pay to the insured, in addition to any other amounts due to the insured under this subsection (1.8), an amount which is three times the amount of unpaid benefits recovered in the proceeding. I

When construing a statute we must ascertain and give effect to the intent of the General Assembly. See, e.g., B.G.'s Inc. v. Gross, 28 P.3d 691 (Colo.2001). To determine legislative intent, we first look to the plain language of the statute, giving effect to the ordinary meaning of words used, without imposing a strained or forced interpretation. See, e.g., Lira v. Davis, 832 P.2d 240 (Colo.1992).

We agree with insurer that the phrase "an amount which is three times the amount of unpaid benefits recovered in the proceeding" does not contemplate the trebling of any amounts other than the unpaid benefits. Thus we conclude that the trial court erred in trebling the interest on the unpaid PIP benefits and in trebling the $50,000 award for- "any other breach of contract." f

Insured's argument that § 10-4-70O8(1.8) requires that trebling of the award and interest thereon is in addition to the award itself, thus resulting in quadruple damages. In our view, the phrase "in addition to any other amounts due" mandates that the original amount of unpaid benefits ("other amounts due") is necessarily included in the amount trebled. However, while we reject this argument, contrary to insurer's contention, it is not frivolous and therefore does not warrant sanctions under CAR. 38(d). See Wood Bros. Homes, Inc. v. Howard, 862 P.2d 925 (Colo.1993).

IIL.

Insurer contends that the trial court abused its discretion in raising the exemplary award from $155,104.11 to $200,000. We disagree.

Section 18-21-102(1)(a), C.R.98.2000, provides for reasonable exemplary damages in all civil actions where "the injury complained of is attended by cireumstances of fraud, malice, or willful and wanton conduct." Section 18-21-102@B)(a), C.R.S8.2000, permits a trial court to increase any exemplary damages award to a sum that does not exceed three times the actual damages if, as relevant here, during the pendency of the action a party engages in willful and wanton conduct and such behavior has further aggravated the damages of the other party, when the wrongdoer knew or should have known that such action would cause aggravation.

In support of the increase here, the trial court noted that insurer initially complained about the expedited trial date, committed discovery violations in a manner that required the court to hold hearings to insure compliance, and delegated to counsel many of its continuing obligations to insured despite insurer's ongoing duty to insured pursuant to Southerland v. Argonaut Inswrance Co., 794 P.2d 1102 (Colo.App.1990). The court also drew an analogy to Dale v. Guaranty National Insurance Co., 948 P.2d 545 (Colo.1997), which held that an insurer's conduct even after an arbitration proceeding is relevant to a claim of bad faith breach of an insurance contract. Finally, the trial court quoted the federal judge's remarks made in denying insurer's second attempt at removal:

Congress-I don't think-intended that the rules of the statutes on removal should be used by a party defendant to apparently attempt to get around or to defeat the clear intent of the Colorado legislature in passing 183-1-129, giving preferential trial dates. And it appears ... that these repeated requests for removal are ... very transparent attempt[s] to do just that.

Insurer argues that the trial court cannot increase the exemplary award based primari— ly on insurer's litigation conduct because litigation tactics and strategy are necessarily independent of its conduct regarding coverage, because allowing the jury to consider such conduct creates evidentiary difficulties, and because to conclude otherwise would have a "chilling effect" on insurer by inhibit, ing zealous and effective representation.

We are not persuaded. The trial court, not the jury, considered insurer's litigation conduct in increasing the exemplary award. In addition, insurer's litigation conduct was precisely the conduct the trial court should focus on in determining whether to increase the award. See Bennett v. Greeley Gas Co., 969 P.2d 754 (Colo.App.1998).

Given the trial court's findings, which are premised on the extraordinary facts in this case, and noting also the federal district court's statements, we find no abuse of discretion. See Mailloux v. Bradley, supra. Our conclusion here should not have a chilling effect on insurer's ability to contest questionable claims using legitimate, zealous litigation tactics and strategies.

IV.

Insured contends that the trial court erred in not granting attorney fees pursuant to § 10-4-708. In a related argument, insured requests that this court grant attorney fees for defending this appeal. We are not persuaded.

A trial court's decision regarding an award of attorney fees is reviewed under an abuse of discretion standard. See, e.g., Deighton v. City Council, 8 P.3d 488 (Colo.App.2000). A determination whether attorney fees should be awarded is within the discretion of the trial court and will not be disturbed on review if it is supported by evidence. See M Life Insurance Co. v. Sapers & Wallack Insurance Agency, Inc., 962 P.2d 335 (Colo.App.1998). A trial court abuses its discretion only if its ruling is manifestly arbitrary, unreasonable, or unfair. Lauren Corp. v. Century Geophysical Corp., 953 P.2d 200 (Colo.App.1998).

Generally, § 10-4-708(1.7)(a), C.R.8.2000, provides that a party claiming benefits shall serve a notice on the insurer of attorney fees claimed no later than twenty days prior to trial. If notice is untimely, an insured may recover attorney fees only if his failure to give timely notice was the result of exeusable neglect.

Insured asserts that he was precluded from submitting his notice in a timely manner by insurer's litigation tactics. Specifically, insured argues that insurer's amoral attempts prevented him from filing his notice with the trial court in a timely manner and would have "waived his right to remand" had he filed it in federal district court.

Without addressing the merits of insured's argument, we note that such difficulties encountered because of insurer's actions could be considered "exeusable neglect." However, we conclude that the trial court's contrary conclusion does not rise to the level of an abuse of discretion.

We reject insured's request for appellate attorney fees because, although insurer's conduct prior to and during litigation has been found egregious, we cannot say that its pursuit of this appeal has been: frivolous. CAR. 38(d);, see generally Wood Bros. Homes, Inc. v. Howard, supra.

Accordingly, the judgment is reversed as to the trebling of the $1,280.20 interest on the unpaid PIP benefits and the trebling of the $50,000 awarded for "any other breach of contract," and the case is remanded for entry of a correct judgment. The judgment is affirmed in all other respects.

Judge DAVIDSON and Justice ERICKSON,* concur.

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