author: PER CURIAM.

text:
    Richard S. JONES, Petitioner-Appellant, v. Dean WILLIAMS, Executive Director of the Colorado Department of Corrections, Respondent-Appellee.
    Supreme Court Case No. 18SA189
    Supreme Court of Colorado.
    June 24, 2019
    Richard S. Jones, pro se, Olney Springs, Colorado
    Attorneys for Respondent-Appellee: Philip J. Weiser, Attorney General, Alison Faryl Kyles, Assistant Solicitor General, Denver, Colorado
    En Banc
   PER CURIAM.

¶1 The Habeas Corpus Act requires that a habeas petition "be accompanied by a copy of the warrant of commitment." § 13-45-101(1), C.R.S. (2018). In this habeas corpus appeal, we consider whether a district court may summarily dismiss a petition for lack of jurisdiction when the petition includes the petitioner's mittimus for his latest conviction but does not include the mittimuses for two earlier convictions, which he asserts are relevant to his habeas claim. To resolve this issue, we review the constitutional and statutory authority authorizing habeas corpus and our prior caselaw discussing the warrant requirement. We conclude that noncompliance with the warrant requirement does not deprive courts of jurisdiction over habeas corpus petitions. We overrule our prior cases holding that failing to provide a copy of the warrant of commitment is a jurisdictional defect, deprives the court of authority to act on a habeas petition, and requires summary dismissal. Accordingly, we reverse the district court's order dismissing the habeas petition for lack of jurisdiction and remand to the district court for further consideration.

I. Facts and Procedural History

¶2 Richard S. Jones filed a habeas corpus petition in the district court challenging the Department of Corrections' ("DOC") calculation of his parole eligibility date ("PED"). Jones asserted that the DOC used only his latest 2008 conviction to calculate his PED, but, to correctly calculate his PED, he believed that the DOC's calculation should include two earlier convictions from 1991. If his PED was calculated utilizing the 1991 convictions, Jones argued that he had passed his PED and was being unlawfully denied consideration for parole. His habeas petition included the mittimus for the 2008 conviction but did not include the mittimuses for the two 1991 convictions.

¶3 In response to Jones's petition, the DOC moved to dismiss for lack of jurisdiction. The DOC characterized Jones's failure to include all three of his mittimuses as a "jurisdictional failure which requires dismissal." The district court granted the DOC's motion and dismissed the petition.

¶4 Jones appealed the district court's order to this court. See Colo. Const. art. VI, § 2 (outlining appellate jurisdiction of the supreme court); § 13-4-102(1)(e), C.R.S. (2018) (excluding habeas corpus appeals from the jurisdiction of the court of appeals); see also Nowak v. Suthers , 2014 CO 14, ¶ 11, 320 P.3d 340, 343.

¶5 Jones is representing himself. In his appellate briefs, he reasserts the merits of the claims he outlined in his habeas corpus petition. Pleadings by pro se litigants must be broadly construed to ensure that they are not denied review of important issues because of their inability to articulate their argument like a lawyer. See People v. Bergerud , 223 P.3d 686, 696-97 (Colo. 2010). Broadly construed, Jones argues that he was entitled to a ruling on the merits, and the district court should not have dismissed his petition.

¶6 Relying on this court's precedent, the DOC contends that the district court properly dismissed the petition because the district court lacked jurisdiction as a result of Jones's failure to provide all three of his mittimuses.

II. Analysis

¶7 When, as here, the challenge to the court's jurisdiction involves no disputed facts and instead involves interpreting a statutory requirement, we review the district court's dismissal order de novo. St. Vrain Valley Sch. Dist. RE-1J v. Loveland , 2017 CO 54, ¶ 10, 395 P.3d 751, 754 ; Nowak, ¶ 17, 320 P.3d at 344. In interpreting a statutory requirement, we must give effect to the General Assembly's intent. Colorow Health Care, LLC v. Fischer , 2018 CO 52M, ¶ 11, 420 P.3d 259, 262. To determine that intent, we look at the statute's plain language, apply the text as written, and read the words in context giving the words their ordinary meanings. Id .

¶8 To decide whether the warrant requirement of section 13-45-101(1) is a jurisdictional requirement, we review the constitutional and statutory authority allowing habeas corpus. We also revisit our caselaw discussing the warrant requirement. We disagree with the DOC and conclude that the statutory requirement that a habeas petition "be accompanied by a copy of the warrant of commitment" is not jurisdictional. Therefore, noncompliance with the statute does not deprive the court of authority to act on the petition. When a habeas petition's allegations involve multiple sentences from multiple cases, a district court should either order the petitioner to provide the missing information or consider the petition based on the information provided.

A. Habeas Corpus Authority

¶9 The court's power to hear habeas corpus petitions derives from constitutional and statutory grants of authority. The Colorado Constitution grants the right to seek a writ of habeas corpus. Colo. Const. art. II, § 21. The Habeas Corpus Act, in turn, makes it "lawful ... to apply to the ... district courts for a writ of habeas corpus." § 13-45-101(1). Thus, all district courts in Colorado have subject matter jurisdiction to hear and decide habeas corpus cases. See Horton v. Suthers , 43 P.3d 611, 615 (Colo. 2002) ; see also Colo. Const. art. VI, § 9 (authorizing district courts to "be trial courts of record with general jurisdiction").

¶10 In addition to granting district courts authority to entertain habeas corpus cases, the Habeas Corpus Act sets out statutory requirements for habeas petitions. Petitions

shall be in writing and signed by the prisoner or some person on his behalf setting forth the facts concerning his imprisonment and in whose custody he is detained, and shall be accompanied by a copy of the warrant of commitment , or an affidavit that the said copy has been demanded of the person in whose custody the prisoner is detained, and by him refused or neglected to be given.

§ 13-45-101(1) (emphasis added).

¶11 The DOC asserts that the statutory warrant requirement is jurisdictional and that noncompliance deprives the court of the authority to act on the petition. To support its position, the DOC relies on Evans v. District Court , 194 Colo. 299, 572 P.2d 811, 813 (1977). Evans is the fourth case in a line of cases discussing the warrant requirement. Over time, these cases evolved to equate the statutory requirement with a jurisdictional requirement.

¶12 We first considered the effect of noncompliance with the statutory warrant requirement in reviewing a district court's denial of a habeas corpus petition in 1961. A copy of the warrant of commitment was not included with the petition. See Wright v. Tinsley , 148 Colo. 258, 365 P.2d 691, 692 (1961). We acknowledged the petitioner's failure to follow the statute and stated that "[t]he importance of this statutory provision is immediately apparent. In our consideration of this writ of error we have nothing but the allegations of the pleadings from which to determine the specific convictions upon which the commitment was made." Id . But we went on to conclude that "[t]here is nothing shown to indicate that petitioner is being illegally incarcerated at this time or that he is entitled to immediate liberation, the relief sought by this habeas corpus proceeding[ ]." Id.

¶13 Five years later, we again reviewed a district court's denial of a habeas corpus petition which lacked a copy of the warrant of commitment. See McNamara v. People , 159 Colo. 139, 410 P.2d 517, 517 (1966). This time, we did not reach the merits; we stated instead that a petition lacking a copy of the warrant of commitment "has no validity and cannot be acted upon." Id. at 518 (citing Wright , 365 P.2d at 692 ). We determined that, in this circumstance, the district court should have summarily denied the petition without a hearing. Id. at 517-18. The leap from Wright , which characterized the warrant requirement as necessary to provide information to support the petition's allegations, to McNamara , which characterized the warrant requirement as necessary to furnish the court with authority to act, was not supported by any reasoning.

¶14 In 1971, borrowing the language from McNamara , we continued down this path and expressly described the warrant requirement as "jurisdictional." See Garrett v. Knight , 173 Colo. 419, 480 P.2d 569, 571 (1971). Knight, a juvenile, was convicted in municipal court without the assistance of counsel and sentenced to ninety days in jail. Id . at 570. Instead of appealing his conviction, he filed a habeas petition in the district court. Id . The petition failed to include the warrant of commitment. Id . The district court granted the habeas petition. Id . The city appealed and argued that the remedy of habeas corpus was not available to Knight because he could have appealed his municipal conviction; the city also argued that Knight did not procedurally comply with the habeas statute because he did not provide the warrant of commitment. Id . We reversed the judgment, agreeing with both points. Id . at 570-71. In discussing the warrant requirement, the opinion quoted the section of McNamara recited above, then added "[s]uch is a jurisdictional requirement." Knight , 480 P.2d at 571.

¶15 Next, in 1977, the superintendent of the Colorado State Penitentiary ("CSP") filed an original proceeding asking this court to prohibit a district court from taking further action on a habeas corpus petition. Evans , 572 P.2d at 812. The habeas petition there, which was filed by four CSP inmates, alleged that CSP's regressive classifications deprived them of fundamental rights. Id . In the habeas proceeding, the inmates moved to waive the statutory requirement of attaching their warrants of commitment. Id. Without ruling on the waiver motion, the district court issued a writ of habeas corpus to the superintendent. Id . The superintendent brought an original proceeding, and this court issued a rule to show cause and made the rule absolute. Id. at 812. Relying on the cases outlined in the preceding three paragraphs, we held that the warrant requirement "is a mandatory requirement," and "it is therefore jurisdictional." Id . at 813. We further indicated that "courts may not waive" the warrant requirement or confer jurisdiction upon themselves. Id . ; see also Butler v. Zavaras , 924 P.2d 1060, 1062 (Colo. 1996) (citing Evans with approval).

¶16 The conclusory statements about jurisdiction in these cases mischaracterize the precise effects of noncompliance with the statute. For the reasons explained below, we conclude that noncompliance with the warrant requirement does not deprive the court of jurisdiction over habeas corpus petitions. To the extent that McNamara , Knight , Evans , and Butler hold that noncompliance with the statutory requirement to provide a copy of the warrant of commitment is jurisdictional, deprives the court of authority to act on a habeas petition, and requires summary dismissal, we overrule them.

B. The Warrant Requirement Is Not Jurisdictional

¶17 The legislature can restrict the court's jurisdiction by making statutory requirements jurisdictional. See, e.g., State v. Borquez , 751 P.2d 639, 645 (Colo. 1988) (holding that statutory requirement to seek judicial review of a driver's license revocation in the county of the person's residence was a jurisdictional requirement). But to do so, the legislature must make the limitation on the court's jurisdiction explicit. See In re A.W. , 637 P.2d 366, 373-74 (Colo. 1981). The legislature must also possess the authority to limit the court's jurisdiction. Garcia v. Dist. Court , 157 Colo. 432, 403 P.2d 215, 218-19 (1965) (holding that the General Assembly did not have the authority to limit by statute the constitutional grant of authority to the district court).

¶18 In the Habeas Corpus Act, we find no language expressly or by necessary implication limiting the court's jurisdiction to hear habeas corpus cases. See § 13-45-101(1) ("[I]t is lawful ... to apply to the ... district courts for a writ of habeas corpus."). The procedures set out in the statute, including the warrant requirement, implement the constitutional right to seek a writ of habeas corpus. See Colo. Const. art. II, § 21 ; see also U.S. Const. art. I, § 9, cl. 2. And the Colorado Constitution provides that "[t]he privilege of the writ of habeas corpus shall never be suspended, unless when in case of rebellion or invasion, the public safety may require it." Colo. Const. art. II, § 21. We have referred to this right in the most sweeping terms, calling habeas corpus "the great writ of freedom in Anglo-American jurisprudence" and have admonished that "it is not to be hedged or in anywise circumscribed with technical requirements." People ex rel. Wyse v. Dist. Court , 180 Colo. 88, 503 P.2d 154, 156 (1972) ; see also Geer v. Alaniz , 138 Colo. 177, 331 P.2d 260, 261 (1958).

¶19 Our decision to read the warrant requirement as a statutory procedural requirement, instead of a jurisdictional requirement, is supported by subsection (1) of section 13-45-101. The subsection sets out requirements for a petition for a writ of habeas corpus: the petition must be in writing, signed, set out facts concerning the imprisonment and state in whose custody the prisoner is detained, and be accompanied by the warrant of commitment. § 13-45-101(1).

¶20 The subsection then goes on to instruct the district court how to proceed after receiving a petition: "The court to which the application is made shall forthwith award the writ of habeas corpus, unless it appears from the petition itself, or from the documents annexed, that the party can neither be discharged nor admitted to bail nor in any other manner relieved." Id . We have interpreted this to mean that unless a petition for habeas corpus makes a prima facie showing of unlawful detention or demonstrates a serious infringement of a fundamental right, it is insufficient on its face and should be dismissed without a hearing. See Christensen v. People , 869 P.2d 1256, 1259 (Colo. 1994).

¶21 Dismissal under these circumstances, however, is not the same as dismissal for lack of jurisdiction. We believe that the warrant requirement outlined in the statute should be treated in the same manner as the statutory requirement that the petition set out the grounds entitling the petitioner to relief. As we stated in Wright , the warrant requirement's purpose is obvious: the warrant of commitment provides important factual information to the habeas court to assist the court in assessing whether the petitioner is entitled to relief. Wright , 365 P.2d at 692. We now clarify that failure to include the warrant with the petition does not deprive the district court of authority to act on the petition and should not result in summary dismissal for lack of jurisdiction.

C. Jones's Petition Invoked the District Court's Jurisdiction

¶22 Jones filed a habeas corpus petition in the district court. The petition alleged that he was being denied parole consideration because the DOC miscalculated his PED by using only his 2008 conviction and ignoring his 1991 convictions. He referenced his 1991 convictions and provided the mittimus for his 2008 conviction. These steps were sufficient to invoke the district court's jurisdiction over the petition. Thus, the district court erred in dismissing the case for lack of jurisdiction. Accordingly, we reverse the district court's order, and we remand the case to the district court to consider the merits of Jones's petition.

¶23 Jones's habeas claim is not an uncommon one. See, e.g. , Exec. Dir. of Colo. Dep't of Corr. v. Fetzer , 2017 CO 77, ¶¶ 3-4, 396 P.3d 1108, 1109 ; Nowak , ¶¶ 5-7, 320 P.3d at 342-43. When, as here, the petitioner does not supply all the relevant warrants of commitment and the district court believes that all the warrants are necessary for fair resolution of the habeas petition, the district court should either ask the petitioner to provide the missing information or consider the petition based on the information provided.

III. Conclusion

¶24 Because Jones's petition was sufficient to invoke the court's jurisdiction to act, we reverse the district court's order summarily dismissing the petition for lack of jurisdiction. We hold that noncompliance with the warrant requirement of section 13-45-101(1) does not deprive courts of jurisdiction over habeas corpus petitions. We remand the case to the district court for consideration of the petition's merits.

      We offer no opinion on the merits of Jones's habeas corpus claim.

      The DOC frames the issue as "[d]id the district court properly dismiss Petitioner Jones's petition for a writ of habeas corpus where the district court lacked subject-matter jurisdiction because Jones failed to attach all mit[t]imuses to the petition?" Answer Brief at 1 (emphasis added). We understand the DOC's argument as challenging the district court's authority to entertain a habeas petition that does not comply with the statutory warrant requirement. We do not construe the DOC's argument as challenging the district court's authority to hear habeas petitions as a class of case.

      In the Answer Brief, the DOC also asserts that it has recalculated Jones's PED and has now determined that his PED is in September 2019. Because the PED has been recalculated and brought forward, DOC contends that Jones's habeas corpus claim is moot. We disagree. When Jones filed his habeas petition in the district court in May 2018, he alleged that he should have appeared before the parole board "years ago." The DOC's claim on appeal that Jones's recalculated PED is fast approaching does not render moot his claim that his PED has passed. Cf. Tippett v. Johnson , 742 P.2d 314, 315 (Colo. 1987) (stating habeas claim rendered moot when the relief requested-complete discharge of sentence-had already occurred).

      In this case, though, all three of Jones's mittimuses are in the record. After the DOC moved to dismiss the case, Jones filed his two 1991 mittimuses. It's unclear whether the district court reviewed them before granting the motion to dismiss.


source: Caselaw Access Project

license: Public Domain

text:
    Georgina SANTICH, Amanda Livingston, Rebecca Rail, Amanda Gabriel, Casandra Windecker, Gale Raffaele, Adrianne Axelson, Amanda Shafer, Brandi Campbell, Penny Watkins, Arielle Mansfield, Emily Bachelder, Amrica Terrell, Melanie Tracy, Ashley Wozneak, Laportia Oakley, Alexis Nagle, Janel Anderson, Porscha Green, Johanna Grissom, Karla Martinez, Amy Glines, Chada Mantooth, Ariel Cline, Alena Bailey, Jessica Saulters-Archuleta, Melissa Chavez, Talita Catto, Megan Fitzgerald, Christina Massaro, Andrea Abbott, Nicole Bujok, Rachel Berry, and Kimberly Hale, all individually and on behalf of all others similarly situated, Plaintiffs, v. VCG HOLDING CORP.; Lowrie Management, LLLP ; Denver Restaurant Concepts LP d/b/a PT's Showclub; Troy Lowrie ; Michael Ocello; Kenkev, II, Inc. d/b/a PT's Showclub Portland ; Indy Restaurant Concepts, Inc. d/b/a PT's Showclub Indy; Glenarm Restaurant LLC d/b/a Diamond Cabaret; Glendale Restaurant Concepts, LP d/b/a The Penthouse Club; Stout Restaurant Concepts, Inc. d/b/a La Boheme; and VCG Restaurants Denver, Inc. d/b/a PT's All Nude., Defendants.
    Supreme Court Case No. 18SA212
    Supreme Court of Colorado.
    June 24, 2019
    Attorneys for Plaintiffs: Killmer, Lane & Newman, LLP, Mari Newman, Liana Orshan, Denver, Colorado, Towards Justice, David H. Seligman, Denver, Colorado
    Attorneys for Defendants: Berg Hill Greenleaf & Ruscitti LLP, Rudy E. Verner, Boulder, Colorado, Jackson Lewis P.C., Collin O'Connor Udell, Hartford, Connecticut, Jackson Lewis P.C., Ryan P. Lessmann, Melisa H. Panagakos, Denver, Colorado, Jackson Lewis P.C., Allan S. Rubin, Southfield, Michigan
    Attorneys for Amicus Curiae the Colorado Trial Lawyers Association: Lowrey Parady, Attorneys at Law, Sarah J. Parady, Denver, Colorado
    Attorneys for Amici Curiae National Employment Lawyers Association and Plaintiff Employment Lawyers Association: Sweeney & Bechtold, LLC, Joan M. Bechtold, Denver, Colorado
    En Banc
   JUSTICE HART delivered the Opinion of the Court.

¶1 Under Colorado law, equitable estoppel requires proof of four elements. One of those elements has long been detrimental reliance on the words or actions of the party against whom estoppel is sought. In this case, we accepted jurisdiction over a certified question of law from the United States District Court for the District of Colorado that requires us to determine whether there should be an exception to that requirement in the context of arbitration agreements. We hold that Colorado's law of equitable estoppel applies in the same manner when a dispute involves an arbitration agreement as it does in other contexts. Thus, a nonsignatory to an arbitration agreement can only assert equitable estoppel against a signatory in an effort to compel arbitration if the nonsignatory can demonstrate each of the elements of equitable estoppel, including detrimental reliance.

I. Facts and Procedural History

¶2 In 2017, a group of current and former exotic dancers sued the owners of clubs where they perform and the club owners' corporate parent companies in the United States District Court for the District of Colorado. The plaintiffs allege in their amended complaint that the defendants acted in concert to wrongfully deprive the dancers of basic protections provided by law to employees. The plaintiffs contend that they have been misclassified as nonemployee "independent contractors" or "lessees" pursuant to "Entertainment Lease" agreements that identify the club-owner defendants as "landlords" rather than employers. According to the plaintiffs' pleadings, the club-owner and corporate-parent defendants are jointly and severally liable for denying the dancers earned minimum wages and overtime pay, confiscating or otherwise misallocating their gratuities, charging them fees to work, and subjecting them to onerous fines.

¶3 The club-owner defendants have successfully compelled arbitration of the plaintiffs' claims based on the arbitration clause included in the agreements the dancers signed with the club owners. The corporate-parent defendants seek to do the same, but because they were not parties to the agreements or to any other written contract with the dancers, they have to find a different hook to compel the dancers into arbitration. They argue that the dancers should be equitably estopped from litigating their claims against one set of defendants because they are in compelled arbitration of the same claims against the other set of defendants.

¶4 A federal magistrate judge examined Colorado state contract law and recommended that the district court accept that argument and compel the arbitration of the plaintiffs' claims against the corporate-parent defendants. The recommendation was predicated, in large part, upon a prediction that this court would agree with the court of appeals' decision in Meister v. Stout , 2015 COA 60, 353 P.3d 916. In that case, a division of the court of appeals concluded that when a signatory to a contract containing an arbitration clause asserts a claim arising from that contract against a defendant who was not a party to the contract, he may be estopped from avoiding arbitration and instead be compelled to arbitrate by and with the nonsignatory defendant. Id. at ¶¶ 6, 13-18, 353 P.3d at 919, 920-22. Relying on Meister , the magistrate judge determined that, although they had not signed the agreements, the corporate-parent defendants are entitled to enforce the arbitration provisions against the plaintiffs because the claims asserted against all defendants are interdependent and intertwined with duties and obligations in the Leases. The plaintiffs challenged the magistrate judge's recommendation, urging the federal district court to certify to this court the question whether nonsignatories to an arbitration agreement may invoke the doctrine of equitable estoppel in the absence of a showing of detrimental reliance.

¶5 The federal district court observed that "[a]s it currently stands, Meister fails to address the [reliance] issue and the Court is unclear whether this element is required under Colorado law ... [because] there is no controlling precedent in the decisions of the Colorado Supreme Court." The district court therefore certified the question to this court, and we accepted the certification. See C.A.R. 21.1.

II. Analysis

¶6 The enforceability of arbitration agreements is governed by traditional principles of state contract law. Arthur Andersen LLP v. Carlisle , 556 U.S. 624, 630-31, 129 S.Ct. 1896, 173 L.Ed.2d 832 (2009). In most instances, only the parties to a contract can compel arbitration under that contract and only as to another signatory of the contract. See N.A. Rugby Union LLC v. U.S. Rugby Football Union , 2019 CO 56, ¶20, 442 P.3d 859. If no such agreement exists between particular litigants, as is the case here, there are certain limited circumstances in which a nonsignatory to an arbitration agreement may compel a signatory to arbitrate. Id. at ¶ 21. These limited circumstances include: "(1) incorporation of an arbitration provision by reference in another agreement; (2) assumption of the arbitration obligation by the nonsignatory; (3) agency; (4) veil-piercing/alter ego; (5) estoppel; (6) successor-in-interest; and (7) third-party beneficiary." Id . Here, the nonsignatory corporate-parent defendants argue that they fit within the equitable estoppel exception. Thus, to answer the certified question, we must consider how the doctrine of equitable estoppel has been applied in Colorado.

¶7 Under our state law, equitable estoppel is generally understood as arising "where one party induces another to detrimentally change position in reasonable reliance on that party's actions through words, conduct, or silence." V Bar Ranch LLC v. Cotten , 233 P.3d 1200, 1210 (Colo. 2010) (citing City of Thornton v. Bijou Irr. Co. , 926 P.2d 1, 75 (Colo. 1996) ). However, Colorado law has never favored estoppel. See Dove v. Delgado , 808 P.2d 1270, 1275 (Colo. 1991) ("The doctrine of estoppel is not favored ... and will be applied only when all of the elements constituting an estoppel are clearly shown."); Univ. of Colo. v. Silverman , 192 Colo. 75, 555 P.2d 1155, 1158 (1976) (same); Susman v. Exch. Nat'l Bank of Colo. Springs , 117 Colo. 12, 183 P.2d 571, 573 (1947) (same); see also Langley v. Young , 72 Colo. 466, 211 P. 640, 642 (1922) ("[The] doctrine is not regarded with favor and should be applied only when all the elements constituting an estoppel clearly appear."). For this reason, we have consistently held that the doctrine "will be applied only when all of the elements constituting an estoppel are clearly shown." Dove , 808 P.2d at 1275 (citing Susman , 183 P.2d at 573 ).

¶8 Under this court's longstanding precedent, estoppel may not be applied as a bar absent a clear showing of each of the following four elements:

[T]he party against whom the estoppel is asserted must know the [relevant] facts; that party must also intend that its conduct be acted upon or must lead the other party to believe that its conduct is so intended; the party claiming estoppel must be ignorant of the true facts; and the party asserting the estoppel must detrimentally rely on the other party's conduct.

Jefferson Cty. Sch. Dist. No. R-1 v. Shorey , 826 P.2d 830, 841 (Colo. 1992) (citing Dove , 808 P.2d at 1275 ; Dep't of Health v. Donahue , 690 P.2d 243, 247 (Colo. 1984) ).

¶9 In Meister , the court of appeals broke from that long line of precedent and endorsed an "alternative theory of estoppel" not previously recognized by Colorado courts. ¶¶ 13-15, 353 P.3d at 920-21. The division acknowledged that it was creating a new breed of equitable estoppel in Colorado, but it found the reasoning of courts from other jurisdictions that had adopted this arbitration-specific rule persuasive. See id. The new theory adopted by Meister provides that equitable estoppel would apply where (1) "a signatory must rely on the terms of a written agreement containing an arbitration provision to assert its claims against a nonsignatory" or (2) the "signatory alleges substantially interdependent and concerted misconduct by a nonsignatory and one or more signatories" and the claimed misconduct "is intertwined with duties or obligations arising from the underlying contract." Id. at ¶¶ 14-15, 353 P.3d at 921. This theory of equitable estoppel would apply even in circumstances where the party seeking to assert estoppel made no showing of detrimental reliance.

¶10 The court of appeals appears to have adopted this new theory of equitable estoppel because "Colorado has a strong policy favoring arbitration agreements." Id. at ¶ 10, 353 P.3d at 920. That rationale is not sufficient to support the creation of an entirely new theory of equitable estoppel that is unmoored from the basic premise of the doctrine, that it "arises where one party induces another to detrimentally change position in reasonable reliance on that party's actions through words, conduct, or silence." V Bar Ranch , 233 P.3d at 1210. As the New Jersey Supreme Court said in rejecting the same theory that we reject here: "Equitable estoppel is more properly viewed as a shield to prevent injustice rather than a sword to compel arbitration." Hirsch v. Amper Fin. Servs., 215 N.J. 174, 71 A.3d 849, 852 (2013) ; see also Ervin v. Nokia, Inc. , 349 Ill.App.3d 508, 285 Ill.Dec. 714, 812 N.E.2d 534, 542-43 (2004) (declining to adopt this theory of equitable estoppel because it is inconsistent with state law on estoppel); B.C. Rogers Poultry, Inc. v. Wedgeworth , 911 So. 2d 483, 491-92 (Miss. 2005) (same). We see no compelling reason to depart from our traditionally defined elements of equitable estoppel to craft an arbitration-specific rule.

¶11 Of course, nonsignatories to a contract containing an arbitration provision might be able to compel arbitration on equitable estoppel grounds, but to do so they would need to prove all four traditionally defined elements of the doctrine, including, but not limited to, the element of detrimental reliance. We therefore disavow Meister 's endorsement of a special estoppel rule predicated upon the interconnectivity of claims and actions taken in concert by signatories and nonsignatories to an arbitration agreement.

III. Conclusion

¶12 In keeping with long-standing Colorado law, an equitable estoppel argument raised by a nonsignatory to a contract who seeks to enforce an arbitration provision must be supported by all four traditionally defined elements of equitable estoppel.

      We accepted jurisdiction to answer the question:
      What elements must be established by a nonsignatory to an arbitration agreement in order for the doctrine of equitable estoppel to apply and thereby require a signatory to an arbitration agreement to arbitrate claims brought against a nonsignatory?

      We recognize that our answer to the certified question may result in piecemeal litigation in which related claims simultaneously proceed in court and arbitration. But " 'policy reasons' alone cannot replace ... necessary predicate[s] for the application of equitable estoppel." Goldman v. KPMG, LLP , 173 Cal.App.4th 209, 92 Cal. Rptr. 3d 534, 553 (2009).


text:
    IN RE In the Matter of the ESTATE OF Stacy FELDMAN, Decedent.
    Supreme Court Case No. 18SA284
    Supreme Court of Colorado.
    June 24, 2019
    Attorneys for Elizabeth Greenberg: Wade Ash Woods Hill & Farley, P.C., Herbert E. Tucker, Jody J. Pilmer, Denver, Colorado
    Attorneys for Special Administrator Melissa R. Schwartz: Gill & Ledbetter, LLP, Anne Whalen Gill, Castle Rock, Colorado
    Attorneys for Robert Feldman: Lathrop Gage, LLP, Alison E. Zinn, Denver, Colorado
    Attorneys for Haddon, Morgan and Foreman, P.C.: Haddon, Morgan and Foreman, P.C., Jeffrey S. Pagliuca, David S. Kaplan, David G. Maxted, Denver, Colorado
    En Banc
   CHIEF JUSTICE COATS delivered the Opinion of the Court.

¶1 Feldman and the law firm of Haddon, Morgan & Foreman petitioned for relief pursuant to C.A.R. 21 from an order of the probate court requiring the law firm to provide information to the special administrator concerning its representation of Feldman in a criminal prosecution for the murder of his wife, and to deposit funds held in its client trust account into the registry of the court. In response to the assertion of the special administrator that Colorado's "slayer statute" applies to the funds at issue as proceeds of the decedent's life insurance policy, the probate court determined that if Feldman were later found, in the manner prescribed by the statute, to be the decedent's killer, he would be ineligible to receive those proceeds. Against that eventuality, the probate court found that compelling the return of the unearned funds in the firm's client trust account would be the only way to protect the children's interests, and that the court's equitable powers permitted it to do so.

¶2 We issued our rule to show cause and now conclude that the probate court abused its discretion by issuing its order without weighing the considerations inherent in preliminarily enjoining the law firm from expending further funds in the representation of Feldman. In addition, however, because the slayer statute expressly protects third parties who receive a payment in satisfaction of a legally enforceable obligation from being forced to return that payment or from liability for the amount of the payment, no finding of a reasonable likelihood of success in attempting to force the return of the insurance proceeds would have been possible. Given this resolution, the disclosures ordered by the court would not serve their intended purpose. The rule is therefore made absolute.

I.

¶3 As indicated in the probate court's order, Stacy Feldman died in 2015 and that same year her husband, Robert Feldman, received a disbursement of approximately $ 751,910 as the sole beneficiary of an insurance policy on the decedent's life. Almost three years after his wife's death, Feldman was charged with her murder. Pursuant to a fee agreement, he retained the law firm of Haddon, Morgan & Foreman to represent him in this criminal matter, and his retainer was deposited into the firm's client trust account.

¶4 Those trust account funds, the probate court found, were derived from the life insurance proceeds distributed to Feldman, and he intended to spend approximately $ 550,000 remaining from those proceeds to fund his criminal defense.

¶5 The record demonstrates that after criminal charges were filed against Feldman, Elizabeth Greenberg, as guardian for the Feldmans' two minor children, filed two petitions with the Denver probate court concerning the decedent's estate. The first petition asked for relief under Colorado's "slayer statute," § 15-11-803, C.R.S. (2018), and for a constructive trust, and the second petition requested the appointment of a special administrator.

¶6 The probate court then appointed a special administrator in both probate matters and granted her the authority to investigate and provide an inventory of the decedent's assets, pursue appropriate legal action on behalf of the decedent's estate, prevent further dissipation of estate assets by Feldman, review Feldman's attorney billing statements and attorney fee agreements, and ascertain the amounts held in client trust accounts for Feldman.

¶7 As recounted by the probate court in its order, the special administrator then sent the law firm a letter requesting copies of Feldman's fee agreement, copies of attorney billing statements, and the balance of funds remaining in the firm's client trust account for Feldman. Additionally, the special administrator notified the law firm that she would be attempting to recover the life insurance proceeds paid to Feldman.

¶8 The parties filed various motions with the probate court concerning the special administrator's requests. After oral argument, the probate court issued an order requiring the law firm to (1) deposit the funds held in the firm's client trust account into the court's registry or another trust account set up by the special administrator, and (2) disclose information relating to its fee agreement with, and billing records to, Feldman and the amount and source of funds in the client trust account.

¶9 The probate court determined it could issue this order under authority of the slayer statute and its equitable powers to carry out that statute's intent. Without freezing those funds, the court reasoned a large portion, if not all, of the insurance proceeds would be spent on Feldman's legal defense, depriving his children of money that would belong to them if Feldman were later convicted of murdering his wife.

¶10 Feldman and the law firm petitioned this court for relief pursuant to C.A.R. 21, asserting that the probate court exceeded its authority and abused its discretion by freezing the funds held in the client trust account and ordering disclosures. We issued a rule to show cause.

II.

¶11 Exercise of our original jurisdiction under C.A.R. 21 is within our sole discretion. Fognani v. Young , 115 P.3d 1268, 1271 (Colo. 2005). An original proceeding under C.A.R. 21 is an extraordinary remedy that is limited in purpose and availability. Wesp v. Everson , 33 P.3d 191, 194 (Colo. 2001). It may be appropriate, however, to review an interlocutory order for an abuse of discretion when appellate review would be inadequate. Smith v. Jeppsen , 2012 CO 32, ¶ 6, 277 P.3d 224, 226.

¶12 In their petition, Feldman and the law firm assert that the probate court exceeded its jurisdiction and abused its discretion when it ordered the law firm to deposit the funds held in its client trust account in the court's registry pending a determination of whether its client, Feldman, killed his wife. Without access to those funds, they assert that Feldman will be unable to pay the firm's legal fees, the firm will have to withdraw from representing Feldman, and he will be deprived thereby of his legal counsel of choice for the serious criminal charges brought against him. Because appellate review would be inadequate to rectify an abuse of discretion under these circumstances, we conclude that exercise of our original jurisdiction is appropriate.

III.

¶13 In Lunsford v. Western States Life Insurance , 908 P.2d 79, 83 (Colo. 1995), we addressed the scope of protection provided by a forerunner of Colorado's "slayer statute" to insurance companies that paid life insurance proceeds to a primary beneficiary who was later determined to have murdered the insured. Finding that the statute was silent regarding a beneficiary's entitlement to insurance proceeds in situations other than those in which the beneficiary was determined, by the means prescribed by the statute itself, to have murdered the person upon whose life the policy was issued, we found the statute simply inapplicable to the question of insurance company liability in that case. Id. at 84-85. Unlike the question of liability for the distribution with which we were faced in Lunsford , the question before us in this original proceeding concerns the discretion of the probate court to freeze life insurance proceeds that had already been distributed to the primary beneficiary, until such time as a statutorily prescribed determination whether he was the killer of the insured could be made.

¶14 While the statute has been amended and no longer expressly provides for the disposition of proceeds of a life insurance policy, see § 15-11-803(3), C.R.S. (1987), it nevertheless currently provides for the revocation of any disposition of property made by the decedent to the killer in a governing instrument, and it continues to prescribe the means by which a felonious killing, for purposes of such revocation, must be established. See § 15-11-803(1)(b), (3)(a). The probate court specified in its order that if it should be proven under the provisions of the slayer statute that Feldman is the decedent's killer, that determination would make him ineligible to receive the insurance proceeds at issue in this case, and neither party appears to dispute that those insurance proceeds would qualify as a disposition as to which a felonious killing would require the revocation of benefits by section 15-11-803(3). Although the statute makes a person who receives a payment to which that person is not entitled obligated to return the payment, § 15-11-803(9)(a), the statute does not expressly address the question of freezing insurance proceeds until it can be determined, according to the statute, whether the person receiving the payment was entitled to receive it or not.

¶15 As the probate court below noted in issuing its order, probate courts in Colorado enjoy equitable jurisdiction in addition to the authority granted to them under particular provisions of the Probate Code. Beren v. Beren , 2015 CO 29, ¶ 19, 349 P.3d 233, 241. But "equity jurisdiction" in this sense has never been equated with a roving commission to do good. See 1 Dan B. Dobbs, Law of Remedies § 2.2 (2d ed. 1993) (tracing the development of equity jurisdiction). Rather, it more accurately refers to a court's powers derived from the body of equity precedent, doctrine, and practices attributable to the equity courts of old. See id. § 2.1(3). More specifically, we have characterized the equity jurisdiction of Colorado's probate courts as limited to those powers the probate court "traditionally exercised before adoption of the Probate Code" and only then if that exercise of equity has not been "displaced" by particular provisions of the Code. Beren , ¶ 19, 349 P.3d at 241. The Probate Code displaces a court's general equitable authority "when an exercise of equity conflicts with the plain language of that specific provision and the two cannot be reconciled." Id. at ¶ 21, 349 P.3d at 241.

¶16 Notwithstanding other formal or procedural limitations, the probate court therefore clearly has the jurisdiction to impose established equitable remedies, whether or not those powers have been expressly granted to the probate court in its enabling legislation. No more than any other court, however, is the probate court relieved of exercising its discretion according to the limitations that have developed for the imposition of such equitable remedies. However designated, the probate court's order here, compelling the law firm, as it does, to deposit in the court registry the funds remaining in the firm's client trust account, necessarily implicates the equitable remedies of constructive trust, as well as preliminary injunction.

¶17 Generally, a constructive trust is an equitable device used to compel one who unfairly holds a property interest to convey that interest to another to whom it justly belongs. In re Marriage of Allen , 724 P.2d 651, 656-57 (Colo. 1986). And although assets subject to a constructive trust may be frozen under some circumstances to preserve the corpus of the constructive trust pending trial on the merits, see 2 Dan B. Dobbs, Law of Remedies § 6.1(5) (2d ed. 1993), enjoining the holder from access to its property in this way necessarily implicates the balance of equities required for a preliminary injunction, see, e.g., Lyons v. Jefferson Bank & Tr. , 781 F. Supp. 1525, 1530-31 (D. Colo. 1992) (applying test for granting a preliminary injunction to freeze assets claimed under a constructive trust); Wilty v. Prudential Ins. Co. of Am. , 2018 WL 7019197, at *1-2 (W.D. Tenn. Sept. 25, 2018) (applying test for granting temporary restraining order to freeze already-disbursed funds claimed under a constructive trust and state slayer statutes). Among the other concerns we have identified as prerequisites to preliminarily enjoining someone is a reasonable likelihood of the moving party's success on the merits. Rathke v. MacFarlane , 648 P.2d 648, 653 (Colo. 1982).

¶18 In much the same way a constructive trust "cannot operate against a third party who acquired the property in good faith, for value, and without notice," In re Marriage of Allen, 724 P.2d at 657, Colorado's slayer statute protects bona fide purchasers for value from disgorgement or liability, see § 15-11-803(9)(a). In addition, however, it similarly protects a person "who receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation" from being compelled to return that payment or from being liable for its amount. Id. The language of this provision plainly applies to the funds held in the law firm's client trust account and thereby protects those funds from disgorgement.

¶19 When the law firm accepted Feldman's payment, it did so in exchange for undertaking one or more "legally enforceable obligation[s]" within the meaning of section 15-11-803(9)(a). By agreeing to represent Feldman, the law firm became obligated to uphold all the duties attendant upon an attorney in an attorney-client relationship in addition to its obligations arising under the express and implied terms of its fee agreement with Feldman. See Restatement (Third) of the Law Governing Lawyers § 55 (Am. Law Inst. 2019) (describing an attorney's liability under theories of tort, contract, and breach of fiduciary duty stemming from the attorney-client relationship); 23 Richard A. Lord, Williston on Contracts § 62:5 (4th ed. 2019) (stating that agreements between attorneys and clients concerning the attorney-client relationship are enforceable and should generally be treated as any other contract).

¶20 Greenberg and the special administrator maintain that section 15-11-803(9)(a) is inapplicable because the firm has not yet "received" those funds within the meaning of that provision. They point out that those funds are being held in trust for Feldman and have not yet been earned by the law firm. But in ordinary parlance "receive" merely means "to come into possession of," see receive , Merriam-Webster's Online Dictionary, https://perma.cc/434N-QZQ6, which the law firm indisputably has done with regard to these funds, see Colo. RPC 1.15A(a) (treating client trust account funds as being "in the lawyer's possession").

¶21 Where the probate court's order assumes, and the parties do not dispute, that the funds held in the client trust account represent a disposition of property covered by section 15-11-803(3), cf. § 15-11-803(6) (providing for a "wrongful acquisition of property or interest by a killer not covered by this section"), they also fall within the ambit of section 15-11-803(9)(a)'s protection. As such, even if Feldman is ultimately proven to be a killer within the contemplation of the statute, the statute will not obligate the firm to return the funds or render the firm liable for their expenditure, but rather the firm may continue to earn those funds in accordance with their fee agreement. The special administrator therefore can have no reasonable likelihood of succeeding in recouping those funds covered by the statute for the benefit of the decedent's estate and its rightful heirs.

IV.

¶22 The probate court's order also required the law firm to disclose information relating to its fee agreement with, and billing records to, Feldman and the amount and source of funds in the client trust account. This information would have allowed the court to determine the amount of funds already earned by the firm and therefore exempt from the freeze order.

¶23 Because the probate court could not freeze any of the funds held in the trust account, however, those disclosures would not serve their intended purpose, and it is unnecessary for the firm to now make them.

V.

¶24 The probate court abused its discretion by issuing its order without weighing the considerations inherent in preliminarily enjoining the law firm from expending further funds in the representation of Feldman, and because the slayer statute expressly protects third parties who receive a payment in satisfaction of a legally enforceable obligation from being forced to return that payment or from liability for the amount of the payment, no finding of a reasonable likelihood of success in attempting to force the return of the insurance proceeds would have been possible. Given this resolution, the disclosures ordered by the court would not serve their intended purpose. The rule is therefore made absolute.


text:
    Randy CAMPBELL, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
    Supreme Court Case No. 16SC267
    Supreme Court of Colorado.
    June 24, 2019
    Attorneys for Petitioner: Megan A. Ring, Public Defender, M. Shelby Deeney, Deputy Public Defender, Centennial, Colorado
    Attorneys for Respondent: George H. Brauchler, District Attorney, Eighteenth Judicial District, Susan J. Trout, Senior Deputy District Attorney, Centennial, Colorado
    Attorneys for Amicus Curiae Colorado Criminal Defense Bar: The Noble Law Firm, LLC, Taylor Ivy, Matthew Fredrickson, Lakewood, Colorado
    Attorneys for Amicus Curiae Colorado District Attorneys' Council: Katherine A. Hansen, Denver Deputy District Attorney, Thomas R. Raynes, Executive Director, Colorado District Attorneys' Council, Jennifer R. Knudsen, Traffic Safety Resource Prosecutor, Denver, Colorado
    En Banc
   JUSTICE GABRIEL delivered the Opinion of the Court.

¶1 This case requires us to decide whether the trial court abused its discretion in permitting a police officer to testify regarding the results of a Horizontal Gaze Nystagmus ("HGN") test without first qualifying that officer as an expert witness under CRE 702 and Venalonzo v. People , 2017 CO 9, 388 P.3d 868.

¶2 We conclude that, on the facts of this case, the officer's testimony concerning the HGN test was expert testimony under CRE 702 and that the district court therefore erred in holding otherwise. We further conclude, however, that on the facts presented here, the court's error in admitting the testimony was harmless.

¶3 Accordingly, we affirm the district court's judgment.

I. Facts and Procedural History

¶4 One evening at around midnight, a police officer was on patrol when he noticed a truck drive past him with only one headlight on. Because of that, the officer pulled the truck over and initiated a discussion with the driver, Randy Campbell. The only other person in the car was a friend of Campbell's, who was intoxicated and sitting in the front passenger seat.

¶5 In speaking with Campbell, the officer detected a moderate odor of alcohol on Campbell's breath and noted that his eyes were bloodshot and his speech was slightly slurred. In addition, when the officer asked to see Campbell's identification and Campbell tried to remove it from his wallet, he dropped the wallet on the floor, although he was eventually able to retrieve the identification for the officer.

¶6 Based on these observations, the officer asked Campbell if he had been drinking. Campbell initially responded that he had not had any alcohol that evening, but after the officer said that he could smell alcohol on Campbell, Campbell responded that he had had one beer at approximately 2:30 p.m. that afternoon. The officer then requested that Campbell perform a series of voluntary roadside sobriety maneuvers, and Campbell agreed to do so. According to the officer, when Campbell attempted to get out of the truck, he unsuccessfully reached for the door handle twice before finally grabbing it.

¶7 The officer proceeded to administer three roadside sobriety maneuvers, namely, the HGN test, the "walk and turn," and the "one-leg stand," all of which the officer had been trained on and was certified to administer. After determining that Campbell had failed to perform all three of the maneuvers as a sober person would, and based on the officer's observations of Campbell and on Campbell's admission that he had been drinking, the officer arrested him.

¶8 Following the arrest, the officer noticed three small bottles of alcohol-one opened and two unopened-on the floor of Campbell's truck. In addition, with Campbell's consent, the officer administered two breath tests to determine Campbell's blood alcohol content ("BAC"). These tests showed that Campbell had a BAC of 0.07 and 0.086, respectively, which allowed a permissible inference that Campbell was, at a minimum, impaired by the consumption of alcohol. See § 42-4-1301(6)(a)(II)-(III), C.R.S. (2018).

¶9 The prosecution subsequently charged Campbell with driving under the influence ("DUI"), driving while ability impaired ("DWAI"), operating a vehicle with a defective headlamp, and possessing an open alcohol container. Campbell pleaded not guilty and demanded a jury trial.

¶10 The case proceeded, and during pretrial proceedings, Campbell noted that the prosecution intended to have the officer who conducted the roadside maneuvers on him testify as a lay witness. Campbell argued that such maneuvers comprised "a specialized area of knowledge" and therefore the officer should only be permitted to testify about his observations and should not be allowed to offer "any opinions that stem from those observations that are based on this specialized knowledge that the officer had."

¶11 The court responded that it was working in a bit of a vacuum because it did not know what the officer's testimony would be. The court observed that there could be testimony on roadsides that would require expert opinion but that general testimony by an officer that he was trained to do the test in a certain way, that he did so, and that people who are intoxicated look a certain way while people who are sober look a different way was not scientific testimony necessitating any expert designation. The court then stated that it was not making a finding one way or another but that it would consider an objection at the appropriate time. The case then proceeded to trial.

¶12 At trial, the prosecution called the officer as a witness, and the officer testified at length about his training and experience regarding the roadside maneuvers that he had conducted on Campbell and regarding the maneuvers themselves. In particular, with respect to his qualifications, the officer testified that (1) he was "certified in the standard field sobriety roadside maneuvers and DUI detection"; (2) to obtain this certification, he had taken an initial course at the police academy, which he stated may have been forty hours in length (although he was unsure of that); and (3) he was subsequently recertified every other year through a sixteen-hour course. In addition, he estimated that he had performed approximately seven hundred DUI investigations during his then-fifteen-years of service as a police officer, and he explained that in his training, he had gone through what officers called the "wet lab." In the wet lab, trainees administered the standardized maneuvers on test subjects to see if the subjects could perform the maneuvers as a sober person would. The officer confirmed that at the time he conducted the voluntary roadside maneuvers on Campbell, he was certified to administer them.

¶13 The officer then testified that he typically conducted three different sobriety maneuvers on someone whom the officer suspected was driving under the influence and that he did so in this case. With respect to the HGN test in particular, the officer explained that "you're looking for a total of six clues, three separate clues in each eye." He then described these clues in detail:

During the initial part of it ..., what you do is you hold a stimulus, which is my finger approximately 12 inches from the individual's nose. You then instruct them to follow that stimulus with their eyes, and their eyes only[,] keeping their head perfectly still. As you move it or start the maneuver you start with the left side of the body and what you're initially looking for is equal tracking in the individual's eyes. ... The other thing that you're looking for is the pupil size. ... The next clue or when you start into the clues is lack of smooth pursuit. And what you're looking for is[,] as the eyes are following the stimulus[,] whether or not the eye is stopping or if it's following the stimulus smoothly as it passes in front of their face. The second clue that you're looking for is distinct and sustained nystagmus at maximum deviation and what you do there is you hold the stimulus out at maximum deviation[,] which is basically there's no white left in the corner of the eye[,] and what you're looking for is an involuntary jerkiness of the eye[;] the best way to describe it is if you take a basketball and bounce it against the side of the wall[,] that's the kind of the movement that the eye would make. And the third clue that you're looking for is an onset of nystagmus prior to 45 degrees.

¶14 The officer stated that in this case, he "observed all six clues on the Defendant" and specifically that he "observed the lack of smooth pursuit," "a distinct and sustained nystagmus in both eyes," and "a[n] onset of nystagmus prior to 45 degrees in both eyes."

¶15 Based on the foregoing testimony, the prosecution asked the officer, "Now [was Campbell's] performance of the HGN[,] in your opinion[,] based on your training and experience[,] was that consistent with a sober person?" The officer responded, "No, it was not." At this point, defense counsel objected that the officer's statements amounted to expert testimony, but the court overruled that objection.

¶16 Notably, at trial, Campbell did not deny that he had been drinking. His theory of defense was that he drank after he was pulled over. His counsel thus told the jury that "the key detail here is when Mr. Campbell drank. He drove, then he drank." She went on to explain that Campbell "took a shooter of schnapps [after being pulled over] to calm his nerves for the interaction with the officer." Counsel suggested that, consequently, even though Campbell was impaired when he took the sobriety and breath tests, he was not impaired while driving, as evidenced by the alleged fact that he had not been driving poorly or weaving all over the road. In further support of Campbell's defense, counsel introduced testimony from some of Campbell's friends and from his son, all of whom testified that they had been in Campbell's company in the hours before Campbell set out in his car and that they had not seen him consume any alcohol.

¶17 The jury ultimately rejected Campbell's assertions and convicted him of DWAI, possessing an open alcohol container, and operating a vehicle with a defective headlamp.

¶18 Campbell appealed to the Arapahoe County District Court, but that court affirmed. As pertinent here, the court determined that with respect to the HGN test, the officer developed his opinions by watching Campbell's eye movement, which the court opined was something that an ordinary citizen could do. The court thus concluded that the officer's testimony "was admissible under C.R.E. 701 as lay witness testimony." The court further stated that any trial errors were harmless, although the court did not explain or elaborate on that statement.

¶19 Campbell then sought, and we granted, certiorari review.

II. Analysis

¶20 We begin by setting forth the standard of review governing a trial court's evidentiary decisions. We then discuss our prevailing law regarding expert and lay testimony, and we apply those principles to the facts of this case, concluding that the officer's testimony here amounted to expert testimony that was improperly admitted as lay testimony. Having made this determination, we proceed to consider whether this error was harmless, and we conclude that it was.

A. Standard of Review

¶21 We review a trial court's evidentiary rulings for an abuse of discretion. Venalonzo , ¶ 15, 388 P.3d at 873. A trial court abuses its discretion when its ruling is manifestly arbitrary, unreasonable, or unfair. Id .

¶22 If we determine that a trial court has abused its discretion regarding a preserved, nonconstitutional issue, then we must consider whether the error was harmless. Romero v. People , 2017 CO 37, ¶ 16, 393 P.3d 973, 978. Under this standard, reversal is required only if the error affected the parties' substantial rights. Hagos v. People , 2012 CO 63, ¶ 12, 288 P.3d 116, 119 ; see also C.A.R. 35(c) ("The appellate court may disregard any error or defect not affecting the substantial rights of the parties."); Crim. P. 52(a) ("Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded."); CRE 103(a) ("Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected[.]"). Thus, we will reverse only if the error substantially influenced the verdict or impaired the fairness of the trial. Hagos , ¶ 12, 288 P.3d at 119.

B. The Officer's Testimony Was Expert Testimony

¶23 Campbell principally contends that the trial court abused its discretion in admitting the officer's testimony regarding the HGN test as lay testimony. We agree.

¶24 Under CRE 701, a lay witness's testimony in the form of opinions or inferences is limited to those opinions or inferences that are "(a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." CRE 702, in turn, provides, "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."

¶25 In Venalonzo , ¶ 2, 388 P.3d at 870-71, we articulated the standard to be applied in distinguishing lay from expert testimony. As pertinent here, we held that

in determining whether testimony is lay testimony under Colorado Rule of Evidence ("CRE") 701 or expert testimony under CRE 702, the trial court must look to the basis for the opinion. If the witness provides testimony that could be expected to be based on an ordinary person's experiences or knowledge, then the witness is offering lay testimony. If, on the other hand, the witness provides testimony that could not be offered without specialized experiences, knowledge, or training, then the witness is offering expert testimony.

Id.

¶26 Applying these principles to the present facts, we conclude, for several reasons, that the officer's testimony was expert testimony.

¶27 First, the officer's testimony regarding the HGN test was not the type of testimony that could be offered without specialized experiences, knowledge, or training. As noted above, the officer testified in extensive detail, using specialized and technical terminology, about how the HGN test is administered, the clues that he looks for, and how he interprets those clues. Although the People contend otherwise, we perceive no basis for concluding that such testimony could be expected to be based on an ordinary person's experiences or knowledge.

¶28 Indeed, as described above, the officer himself testified regarding the extensive training that he undertook and the accreditations that he had received, which prepared and qualified him to administer and interpret the HGN test. He further testified regarding his extensive experience in the field, noting that, as of the time of trial, he (1) had fifteen years of experience as a police officer; (2) had conducted approximately seven hundred DUI investigations; and (3) was certified to administer each of the voluntary roadside maneuvers that he had performed here, including the HGN test.

¶29 Second, the prosecution relied on the officer's extensive and specialized experiences, knowledge, and training, specifically asking the officer, "Now [Campbell's] performance of the HGN in your opinion[,] based on your training and experience [,] was that consistent with a sober person?" (Emphasis added.) This question underscored that the officer's testimony was not the type of testimony that someone with only a lay understanding could have been expected to offer.

¶30 Third, although the People argue that anyone who has undergone an eye examination would understand the HGN test, we perceive nothing in the record to support such a claim. Nor can we agree that a lay person without training would be familiar with the principles of the HGN test and would have been able to explain the administration and interpretation of that test to the jury as the officer did.

¶31 For these reasons, we conclude that, on the facts of this case, the officer provided testimony regarding the HGN test that could not have been offered "without specialized experiences, knowledge, or training" and that therefore, the officer's testimony amounted to expert testimony under CRE 702. See Venalonzo , ¶ 2, 388 P.3d at 870-71 ; see also Romero , ¶ 15, 393 P.3d at 977-78 (concluding that the trial court abused its discretion when it allowed a police officer to testify as a lay witness on the concept of "grooming" in a case of sex assault on a child because an ordinary citizen could not have been expected to have the experience, skills, or knowledge required to understand that concept as it relates to sexual predation); People v. Ramos , 2017 CO 6, ¶¶ 9-10, 388 P.3d 888, 891 (concluding that a detective's testimony regarding the difference between blood cast-off and blood transfer evidence was expert testimony because (1) an ordinary citizen would not be expected to have the experience, skills, or knowledge to differentiate between the two; (2) in making the distinction between the two, the officer had relied on his extensive experience as both a police officer and a detective, having worked on thousands of cases involving blood; (3) the People capitalized on the detective's specialized experience and knowledge by asking questions that invoked his training and experience; and (4) the detective used technical terms in offering his opinion).

¶32 Accordingly, we conclude that the trial court abused its discretion when it admitted the officer's testimony as lay testimony and did not require the officer to be qualified as an expert witness.

¶33 This determination, however, does not end our analysis because we must still consider whether the trial court's error in admitting this expert testimony was harmless. We turn next to that question.

C. The Trial Court's Error Was Harmless

¶34 In this case, the parties appear to agree that if the trial court erred in allowing the officer to testify as a lay witness regarding the HGN, the issue was preserved and was nonconstitutional. Accordingly, we review the error under the nonconstitutional harmless error standard, and we will reverse only if the error affected Campbell's substantial rights. Hagos , ¶ 12, 288 P.3d at 119.

¶35 Here, for several reasons, we conclude that the trial court's error in admitting the officer's expert testimony was harmless.

¶36 First, the evidence of Campbell's intoxication was overwhelming. As noted above, when the officer spoke with Campbell, he noted that Campbell's breath had an odor of alcohol, his eyes were bloodshot, his speech was slurred, and he dropped his wallet while trying to retrieve his identification. In addition, when Campbell tried to get out of his truck, the officer saw him reach for the door handle twice without success before grabbing it and opening the door.

¶37 Second, even setting aside the evidence concerning the HGN test, Campbell failed each of the other two roadside sobriety maneuvers that the officer had administered, namely, the "walk and turn," which the officer explained examines whether a person can perform multiple tasks at once, and the "one-leg stand," which tests balance.

¶38 Third, following Campbell's arrest, the officer found three small bottles of alcohol, one opened and two unopened, on the floor of Campbell's car.

¶39 Fourth, with Campbell's consent, the officer administered two breath tests, and those tests revealed a BAC of 0.07 and 0.086, respectively, which, as noted above, established a permissible inference that Campbell was, at a minimum, impaired by the consumption of alcohol.

¶40 Finally, Campbell admitted that he had consumed alcohol before the officer questioned him, and he did not deny that he was impaired when the officer administered the sobriety and breath tests. He asserted, however, that he drank and became impaired in the short time between when the officer pulled him over and when the officer first spoke with him. Although Campbell attempted to support this theory by calling witnesses to testify that they had not seen him drink earlier, several of the witnesses had themselves been intoxicated that day, and others could not have known whether or how much alcohol Campbell may have consumed prior to driving.

¶41 In our view, the foregoing evidence overwhelmingly supported the jury's determination that Campbell drove while his ability was impaired by alcohol, and therefore, we conclude that any error here was harmless. See People v. Stewart , 55 P.3d 107, 124-25 (Colo. 2002) (concluding that the trial court's error in admitting a police officer's testimony as lay opinion was harmless because the officer's testimony was either corroborated by the defendant or by other witnesses or was undisputed and therefore could not be said to have substantially influenced the verdict or to have impaired the fairness of the trial); Tevlin v. People , 715 P.2d 338, 342 (Colo. 1986) (concluding that the trial court's erroneous admission of certain expert testimony was harmless "[i]n light of the overwhelming evidence of guilt produced in th[e] case").

¶42 In concluding that the trial court's error here was harmless, we are unpersuaded by Campbell's argument that the HGN testimony was not harmless because it was "key to the prosecution's case" and influenced the jury's verdict, and because the officer's testimony regarding the HGN test was "the most difficult to challenge." In our view, these assertions, even if true, are insufficient to overcome the overwhelming evidence described above.

¶43 Accordingly, we conclude that the trial court's error in allowing the officer to testify about the HGN test without qualifying him as an expert witness was harmless and does not warrant reversal.

III. Conclusion

¶44 For the foregoing reasons, we conclude that the officer's testimony regarding his administration of and conclusions regarding the HGN test was testimony that could not have been offered without specialized experiences, knowledge, or training and that, therefore, this testimony was expert testimony. Accordingly, we further conclude that the trial court abused its discretion in admitting this testimony without first qualifying the officer as an expert witness. In light of the overwhelming evidence of Campbell's guilt, however, we ultimately conclude that any error by the trial court in admitting the officer's testimony as lay testimony was harmless.

¶45 Accordingly, we affirm the judgment below.

      Specifically, we granted certiorari to review the following issue:
      Whether the trial court abused its discretion in permitting a police officer to testify regarding the results of a Horizontal Gaze Nystagmus test, without first qualifying that officer as an expert under CRE 702 and this Court's decision in Venalonzo v. People , 2017 CO 9, 388 P.3d 868.


author: Opinion by JUDGE J. JONES

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Nicholas Javier ZAPATA, Defendant-Appellant.
    Court of Appeals No. 13CA2155
    Colorado Court of Appeals, Division III.
    Announced May 19, 2016 As Modified on Denial of Rehearing June 16, 2016
    Cynthia H. Coffman, Attorney General, Gabriel P. Olivares, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
    Douglas K. Wilson, Colorado State Public Defender, Joseph Paul Hough, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
   Opinion by JUDGE J. JONES

¶ 1 Defendant, Nicholas Javier Zapata, appeals the judgment of conviction entered on jury verdicts finding him guilty of attempted second degree murder and first degree assault. We affirm.

I. Background

¶ 2 Defendant's ex-girlfriend told him that she had been sexually harassed by the owner of the convenience store where she worked in Littleton. She also told defendant that the store owner had touched her crotch, buttocks, and breasts. However, she did not tell defendant everything that had happened because she "was worried about any actions that [defendant] would take." Nevertheless, defendant was "mad" and "upset" about what she had told him.

¶ 3 One evening, defendant sent her text messages telling her, "Don't be there." Approximately thirty minutes later, defendant and Jose Murillo walked into the convenience store. Defendant and Mr. Murillo had known each other for six months. The evidence indicated that defendant and Mr. Murillo had taken the light rail together from downtown Denver to Littleton, and then they walked together from the light rail station to the convenience store.

¶ 4 Mr. Murillo quickly walked behind the counter and stabbed the store owner's son with a knife. The prosecution's theory was that defendant and Mr. Murillo mistakenly believed that the person behind the counter was the store owner who had sexually harassed and assaulted defendant's ex-girlfriend.

¶ 5 A struggle ensued between Mr. Murillo and the store owner's son. Defendant, who was the only other person in the store, watched the struggle from the other side of the counter. On the high-quality surveillance video, someone can be heard saying, "Get him, get him, get him good." When the store owner's son began hitting Mr. Murillo in the head with a hammer, Mr. Murillo said, "[H]elp me." Defendant quickly left the store and fled. Mr. Murillo suffered permanent brain damage from the fight.

¶ 6 The People charged defendant with conspiracy to commit first degree murder, attempted first degree murder, and first degree assault. The People charged Mr. Murillo in a separate case.

¶ 7 Mr. Murillo pleaded guilty in his case and testified at defendant's trial. He testified that because of his brain damage, he did not remember the convenience store attack. But he also testified that he had known defendant for six months before the attack; the convenience store surveillance video showed him and defendant; they were not there to rob the store; and he was testifying because defendant had left him at the store to die.

¶ 8 The defense theory at trial, and what defendant told detectives during pretrial interviews, was that defendant went to the convenience store hoping to see his ex-girlfriend, and that he did not know that Mr. Murillo was going to attack the person behind the counter. The defense also emphasized that Mr. Murillo regularly used heroin at that time.

¶ 9 The jury found defendant guilty of attempted second degree murder and first degree assault.

¶ 10 On appeal, defendant contends that the district court erred by (1) not requiring the prosecution to disclose statements Mr. Murillo allegedly made during competency evaluations in his separate case; and (2) admitting evidence, as res gestae, of defendant's prior controlling and threatening behavior toward his ex-girlfriend, her new boyfriend, and her mother.

II. Competency Report

¶ 11 We first address defendant's contention that the district court erred by not requiring the prosecution to disclose statements Mr. Murillo allegedly made during competency evaluations in his separate case. Defendant alternatively argues that the district court erred by failing to review the competency evaluations in camera before making its decision.

A. Further Background

¶ 12 In the case against Mr. Murillo, Mr. Murillo's counsel raised the issue of Mr. Murillo's competency, and two competency evaluations were completed.

¶ 13 In this case, at a pretrial hearing, defendant's counsel requested that the prosecution produce any statements Mr. Murillo may have made during a competency evaluation about the underlying facts of the case. The court said that defendant was entitled to exculpatory and inculpatory information, but not any findings about medical issues. The prosecutor said that the People would be willing to produce the competency evaluation with redactions, but that "essentially what he says is he doesn't remember anything about the incident."

¶ 14 Later, Mr. Murillo withdrew his claim of incompetency in his case.

¶ 15 At a subsequent hearing in this case, defendant's counsel told the court that the prosecution had still not produced the competency evaluations. Defendant's counsel also told the court that Mr. Murillo had made a proffer in his case making statements about his involvement in this case. Another hearing was set for Mr. Murillo's counsel to be present.

¶ 16 At that hearing (held on the same day that Mr. Murillo entered a guilty plea in his case), defendant's counsel argued that the competency evaluations must be produced pursuant to section 16-8.5-104, C.R.S.2015; Crim. P. 16 ; and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Mr. Murillo's counsel objected, arguing that Mr. Murillo had not waived his "privilege" as it related to defendant's case, and that Mr. Murillo had already withdrawn his incompetency claim in his case. The prosecutor agreed with Mr. Murillo's counsel that the competency evaluations should not be discoverable and added, "Your Honor, I can tell the Court as an officer of the court there is, I think, maybe two lines about the actual incident in this competency evaluation, and there is nothing in the competency evaluation that is not in the proffer that we've already discovered anyway."

¶ 17 The court denied defendant's request for production of the competency evaluations, explaining,

First of all, the statute does not anticipate a codefendant in a separate case having access to this report. Second, I just took a plea from [Mr. Murillo] in which he indicated he was competent.... And he previously has withdrawn any defense he had that he was not competent as a result [of] ... what happened to him during the incident.... I'm going to find this is not Brady material.

¶ 18 Defense counsel then requested that the court conduct an in camera review of the competency evaluations to determine whether Mr. Murillo had made any inconsistent statements that might implicate defendant's confrontation rights. The court also denied that request, explaining,

This statute was enacted because people have a right to privilege to things they say to a physician or a psychologist or psychiatrist; therefore, there needs to be a law to waive. And that's the privilege. And it's inviolate. I think there's case law that says it's inviolate. There would then have to be a statute which would require the waiver of that inviolate right for certain purposes, and they're set out. Those purposes are for a plea agreement or for trial, and they're available to the defense, to the prosecution. And I don't see anything here that would add ... any other person who may find this information important. It just isn't here. So I'm denying your request based on the plain reading of the statute.

¶ 19 Defendant's counsel later filed a motion for reconsideration, to which he attached Mr. Murillo's proffer in the other case. Defendant's counsel also brought up the issue again on the first day of trial. The court again denied the request.

B. Standards of Review

¶ 20 We review for an abuse of discretion a district court's resolution of discovery issues, including whether to conduct an in camera review of documents sought in discovery. See People v. Herrera, 2012 COA 13, ¶ 10, 272 P.3d 1158. A court abuses its discretion only when its ruling is manifestly arbitrary, unreasonable, or unfair, or when it misapplies the law. Id. at ¶ 11.

¶ 21 We review de novo issues of statutory interpretation. Hunsaker v. People, 2015 CO 46, ¶ 11, 351 P.3d 388. We also review de novo the application of the psychologist-patient privilege. See People v. Kailey, 2014 CO 50, ¶ 12, 333 P.3d 89.

C. Analysis

¶ 22 Defendant's contentions implicate the proper interpretation of section 16-8.5-104 -relating to the waiver of privilege surrounding a competency evaluation-and section 16-8.5-108, C.R.S.2015-relating to the admissibility of evidence obtained during a competency evaluation.

¶ 23 Section 16-8.5-104, entitled "Waiver of privilege," provides that when a defendant raises the issue of his competency, "any claim by the defendant to confidentiality or privilege is deemed waived, and the district attorney, the defense attorney, and the court are granted access" to the competency evaluation reports. § 16-8.5-104(1). It also provides that "[s]tatements made by the defendant in the course of any evaluation shall be protected as provided in section 16-8.5-108." § 16-8.5-104(6).

¶ 24 Section 16-8.5-108, in turn, entitled "Evidence," discusses the limited circumstances of admissibility of "evidence acquired directly or indirectly for the first time from a communication derived from the defendant's mental processes during the course of a competency evaluation." § 16-8.5-108(1)(a) ; see also § 16-8.5-108(1)(b), (1)(c), (2).

¶ 25 Defendant's arguments on appeal concerning these provisions fall into three categories: first, that Mr. Murillo did not have a valid privilege protecting these communications; second, even if he did, he waived any such privilege; and third, any such privilege must give way to defendant's right to discovery under Crim. P. 16 and his constitutional rights to confrontation and due process.

¶ 26 In terms of defendant's argument that Mr. Murillo did not have a valid psychologist-patient privilege concerning the communications at issue, we note that defendant did not raise that argument in his opening brief; instead, he did so for the first time in his reply brief. We ordinarily will not consider such an argument. See People v. Czemerynski, 786 P.2d 1100, 1107 (Colo.1990) (issues not raised in an appellant's opening brief will normally not be considered on appeal).

¶ 27 Regardless, we reject the argument. Defendant argues that the statutory reference to "confidentiality or privilege" does not necessarily refer specifically to the psychologist-patient privilege. But under the statute, competency evaluations can only be conducted by a licensed physician who is a psychiatrist or psychologist, both of whom are subject to the psychologist-patient privilege. See § 16-8.5-101(2), C.R.S.2015; see also § 16-8.5-101(1), (5), (14) ; § 13-90-107(1)(g), C.R.S.2015. Further, the supreme court has made clear that the "confidentiality or privilege" referred to in the former version of section 16-8-103.6 (which at that time included the "confidentiality or privilege" surrounding competency evaluations) is indeed the psychologist-patient privilege. See Hendricks v. People, 10 P.3d 1231, 1242 (Colo.2000) (section 16-8-103.6 involves the waiver of the "physician-patient privilege"); People v. Ullery, 984 P.2d 586, 589-90 (Colo.1999) (section 16-8-103.6 pertains to the "physician/psychologist-patient privileges") (citation omitted); see also People v. Steen, 2014 CO 9, ¶ 9, 318 P.3d 487 ("We will read and consider the statutory scheme as a whole to give consistent, harmonious, and sensible effect to all its parts."); People v. Cunefare, 102 P.3d 302, 306 (Colo.2004) ("Because the language of [another] statute is substantially similar to the language we interpret in this case, we hold that the same principles apply here.").

¶ 28 We also disagree with defendant's argument that Mr. Murillo waived his psychologist-patient privilege concerning the statements he made during the competency evaluations for purposes of defendant's case. The plain language of section 16-8.5-104 indicates that such otherwise privileged communications would only be discoverable in Mr. Murillo's case, not defendant's case. See, e.g., § 16-8.5-104(1) (after a defendant raises the issue of his competency to proceed, the privilege is waived and the competency report shall be disclosed to "the district attorney, the defense attorney, and the court"); § 16-8.5-104(2) ("either party or the court" can request the information); § 16-8.5-104(4) (the court may order additional information be provided to "either party to the case"); see also Gray v. Dist. Court, 884 P.2d 286, 292-93 (Colo.1994) (discussing waiver of psychologist-patient privilege where a defendant tenders his mental condition as an issue in a criminal case).

¶ 29 Further, the plain language of section 16-8.5-108 indicates that any such communications would be admissible only in Mr. Murillo's case, not in defendant's case. Again, significantly, section 16-8.5-104(6) provides that "[s]tatements made by the defendant in the course of [a competency evaluation] shall be protected as provided in section 16-8.5-108." Section 16-8.5-108 details the limited circumstances in which such statements are admissible and not "protected." The provisions in section 16-8.5-108 would only apply to the case brought against Mr. Murillo, not the case brought against defendant. See, e.g., § 16-8.5-108(1)(a) (such evidence may be admissible at trial to rebut evidence introduced by the defendant of the defendant's mental condition to show incapacity of the defendant to form a culpable mental state); § 16-8.5-108(1)(c) (if a defendant testifies on his or her own behalf, such evidence may be used to impeach or rebut the defendant's testimony). Section 16-8.5-108(1)(c) clearly does not apply to defendant's attempts to impeach Mr. Murillo's testimony at defendant's trial.

¶ 30 Finally, we are unpersuaded by defendant's argument that his rights to disclosure under Crim. P. 16 and his constitutional rights to confrontation and due process trump Mr. Murillo's claim of privilege. Where the psychologist-patient privilege protects a witness's statements, and where the privilege has not been waived, a defendant is (at least generally) not entitled to discovery or an in camera review of the privileged statements. See, e.g., People v. Wittrein, 221 P.3d 1076, 1083 (Colo.2009) ; People v. Sisneros, 55 P.3d 797, 800 (Colo.2002) ; Dill v. People, 927 P.2d 1315, 1322-25 (Colo.1996) ; People v. Dist. Court, 719 P.2d 722, 726-27 (Colo.1986). To the extent that rule is not absolute, defendant made no particularized showing that the statements Mr. Murillo allegedly made during the competency evaluations somehow exculpated defendant, or were inconsistent with the information in Mr. Murillo's proffer. See Wittrein, 221 P.3d at 1088 (Martinez, J., concurring in judgment only) ("[W]ithout eliminating the possibility that there may be times when the due process clause requires that the trial court conduct an in camera review of privileged records to determine whether they contain information that must be disclosed to the defense, in the absence of a particularized showing that the records contain exculpatory information not otherwise available to the defendant, in camera review is not required.").

¶ 31 The district court did not err in ruling that the psychologist-patient privilege applied to statements Mr. Murillo made during his competency evaluations, and that Mr. Murillo did not waive his privilege under section 16-8.5-104 for purposes of discovery in defendant's case. Further, the district court did not abuse its discretion in denying the requested discovery and in declining to review the competency reports in camera.

III. Res Gestae

¶ 32 Defendant also contends that the district court erred by admitting evidence, as res gestae, of his prior controlling and threatening behavior toward his ex-girlfriend, her new boyfriend, and her mother. We need not decide whether the court erred, however, because any error in admitting the evidence was harmless.

A. Further Background

¶ 33 Before trial, the prosecution filed a notice of intent to introduce prior acts of defendant as res gestae evidence, or in the alternative as CRE 404(b) evidence. The notice and its attachments, as well as the prosecutor's argument at a hearing, reflected that the prosecution sought to admit evidence of defendant's jealous, controlling, and obsessive behaviors toward the ex-girlfriend. The evidence included text messages that defendant had sent to the ex-girlfriend a week before the convenience store attack, in which he threatened her, her new boyfriend, and her mother. The prosecutor later told the district court that the prosecution also intended to introduce evidence that defendant and his ex-girlfriend had gotten into physical fights within the six months before the convenience store attack.

¶ 34 Over defense counsel's objections, the district court ruled that the evidence would be admissible as res gestae.

¶ 35 At trial, the ex-girlfriend testified that she had ended her relationship with defendant because of his controlling behavior. He needed to know where she was at all times. They would argue and physically fight when she talked to other men. When she ended the relationship, he began threatening her, her new boyfriend, and her mother. The text messages containing such threats, which defendant sent her the week before the convenience store attack, were admitted at trial.

¶ 36 The prosecutor also discussed that evidence during closing argument, and told the jury, "[Y]ou know ... his anger, his possessiveness, his controlling.... Prior to the [attack at the convenience store] you know how he reacts to and what he thinks about people who are messing with [his ex-girlfriend]. And what he would like to do to them."

B. Standards of Review

¶ 37 We review a district court's ruling admitting evidence as res gestae for an abuse of discretion. People v. Reed, 2013 COA 113, ¶ 31, 338 P.3d 364.

¶ 38 When, as here, a defendant has preserved an objection to the admission of evidence, we review for harmless error. See Yusem v. People, 210 P.3d 458, 469 (Colo.2009) ; Reed, ¶ 32. (We disagree with defendant's suggestion that we should review for constitutional harmless error. See Yusem, 210 P.3d at 469 & n. 16 ; Reed, ¶ 32.)

The proper inquiry in determining a harmless error question is not whether there was sufficient evidence to support the verdict without the improperly admitted evidence, but, rather, whether the error substantially influenced the verdict or affected the fairness of the trial proceedings. If a reviewing court can say with fair assurance that, in light of the entire record of the trial, the error did not substantially influence the verdict or impair the fairness of the trial, the error may properly be deemed harmless.

Yusem , 210 P.3d at 469 (quoting People v. Gaffney , 769 P.2d 1081, 1088 (Colo.1989) ). "Put differently, [a defendant] is entitled to reversal if there is 'a reasonable probability that the error contributed to [his] conviction.' " Id. (quoting in part People v. Garcia, 28 P.3d 340, 344 (Colo.2001) ).

C. Analysis

¶ 39 We need not resolve the question whether the district court abused its discretion in admitting the aforementioned evidence as res gestae because any such error was harmless. Defendant did not dispute that he walked into the convenience store with Mr. Murillo and watched the attack from the other side of the counter. The case turned on whether the jury believed the prosecution's theory that defendant had enlisted Mr. Murillo to attack the store owner, or instead believed defendant's theory that he was a mere bystander who witnessed the attack.

¶ 40 On the one hand, the evidence supporting the prosecution's theory was compelling: defendant learned of the store owner's sexual harassment of and assaults on his ex-girlfriend; defendant was angry and upset about it; defendant texted his ex-girlfriend thirty minutes before the attack telling her, "Don't be there"; during the attack, Mr. Murillo said, "[H]elp me"; and the evidence strongly indicates that it was defendant who said during the attack, "Get him, get him, get him good."

¶ 41 On the other hand, the defense theory was weak, given that defendant had traveled with Mr. Murillo from downtown Denver to Littleton and that they had then walked to the convenience store together; Mr. Murillo had never been to Littleton before and did not know anyone who worked at the convenience store; and no evidence indicated that Mr. Murillo had some other motivation to attack the store clerk.

¶ 42 In sum, although the evidence of defendant's prior controlling and threatening behavior may have impugned his character to a degree, we conclude that any error in admitting that evidence did not substantially influence the verdict or impair the fairness of the trial. See Yusem, 210 P.3d at 469.

IV. Conclusion

¶ 43 The judgment is affirmed.

JUDGE WEBB and JUDGE BOORAS concur.

      Before 2008, section 16-8-103.6, C.R.S.2015, pertained to the waiver of "confidentiality or privilege" surrounding mental health evaluations to determine either competency or insanity. In 2008, the General Assembly relocated the provisions concerning waiver of privilege surrounding competency evaluations to section 16-8.5-104, C.R.S.2015. See Ch. 389, secs. 2 & 3, §§ 16-8-103.6, 16-8.5-104, 2008 Colo. Sess. Laws 1841-42, 1850-51; see also People in Interest of W.P., 2013 CO 11, ¶ 15, 295 P.3d 514 (discussing statutory amendment). The current version of section 16-8.5-104 contains the same reference to "confidentiality or privilege," and we hold that it also refers to the psychologist-patient privilege, just as the former version of 16-8-103.6 did.