author: FABE, Justice.

text:
    MATANUSKA ELECTRIC ASSOCIATION, INC., Appellant, v. Rowland Scott WATERMAN, Appellee.
    No. S-10828.
    Supreme Court of Alaska.
    March 26, 2004.
    Kyle W. Parker and David J. Mayberry, Patton Boggs LLP, Anchorage, for Appellant.
    Peter J. Maassen, Ingaldson Maassen, P.C., Anchorage, for Appellee.
    Before: BRYNER, Chief Justice, MATTHEWS, FABE, and CARPENETI, Justices.
   OPINION

FABE, Justice.

I. INTRODUCTION

Rowland Waterman sued Matanuska Electric Association, Inc. (MEA) after the Board of Directors refused to seat a successful candidate for the Board of Directors because of alleged campaign disclosure violations. The superior court granted Waterman's motion for summary judgment, concluding that under the MEA bylaws the MEA Board was not permitted to refuse to seat a successful board candidate. MEA appeals the superior court's judgment. Because the superior court correctly interpreted the MEA bylaws, we affirm its ruling.

II. FACTS AND PROCEEDINGS

A. Factual History

Matanuska Electric Association, Inc. (MEA) is a public utility cooperative that is managed by a seven-person board of directors. In the spring of 2001 three Board seats came up for election. Two incumbent directors, Rose Marie DePriest and Linda Shattuck, sought reelection, while there was no incumbent for the third seat. Michael Janeeek and Mae Tischer both ran for the open seat. Janecek received 119 votes more than Tischer in the election. DePriest and Shattuck were both reelected to the Board.

On April 9, 2001, the Board met to certify the election results and to seat the winning candidates. At this meeting, one participant expressed concern about Janecek's campaign disclosures, suggesting that Janecek's advertising cost more than his disclosure statements revealed. At the same meeting, Stephen Ellis, MEA's counsel, questioned Janecek about the contents of his disclosure report as well as his contributions and expenditures. The meeting was then continued to April 30 so that the campaign disclosures of all of the winning candidates could be reviewed. None of the successful candidates were seated at the April 9 meeting.

There are four campaign-finance reports described in the "Election 2001 Candidate's Handbook": a pre-election report which must be filed ten to twenty days prior to the April annual meeting; a post-election report which covers the period after the filing of the pre-election report and must be filed within twenty days after the April annual meeting; a year-end report for all of 2001; and a correction report. The correction report is described in the handbook as an opportunity for a candidate to provide any information that is missing:

If a candidate fails to fully disclose the information required by MEA, he will be notified by the Board of Directors of the actions needed to fully comply-for example, to correct any erroneous campaign finance report. The candidate will be asked to file a Correction Report. The Board will specify the period this report should cover. The Correction Report must be filed within 830 days after the candidate receives notice of the Board's request for the report.

On April 26 Janecek filed two reports: a timely post-election report and a correction of his pre-election report. In his correction report, Janecek disclosed a $6,400 invoice for a mailing performed by North Mail. His post-election report also included advertising expenses with the Frontiersman newspaper.

The MEA Board meeting resumed on April 30, 2001. Apparently Ellis had conducted an investigation of the candidates in the interim although the April 9 meeting transcript makes no mention of any request for such an investigation. Ellis asked that the Board go into executive session to consider the findings of his investigation. Directors Lester and Cottle objected to going into executive session, but Ellis responded that he expected the findings to be made public after the executive session. There is no record of what occurred in the executive session.

When the regular session resumed, the Board adopted the findings of fact set forth in Ellis's investigation report. Ellis then orally summarized the contents of his report, describing his findings for each candidate. Ellis found several irregularities for DePriest and Shattuck, but he described each of these as "minor," "in good faith," and "correctable." No objection was raised to seating these two successful candidates on the Board, and subsequent to Ellis's review, each was sworn in.

Ellis then summarized his findings about Janecek. He identified a failure to disclose $1,935 in ads placed by Janecek in the Frontiersman and described this as a violation that could "not be cured or corrected." Ellis concluded that there were "aggravating factors" making Janecek's explanation for the omission not "credible." Ellis also identified a mailing expense of $6,400 that was not disclosed when it was accrued. Ellis described Janecek's other violations as minor and correctable.

After Ellis completed his report, Board President William Folsom opened the floor for discussion. Although one board member asked whether Janecek or his attorney would have an opportunity to respond to Ellis's findings, Folsom maintained that Ellis's report was based on Janecek's disclosures. Immediately thereafter, a motion was made that Janecek be found in violation of the MEA bylaws and thus not be seated on the Board. Before the vote, Janecek repeatedly requested to be heard, only to be told by Folsom that the Board was not hearing "anything further from the public." The Board then voted 5-2 not to seat Janecek. By a 5-2 vote, Tischer, Janeeek's opponent, was seated in Janecek's stead. Before Tischer was seated, Ellis pointed out Tischer's own disclosure irregularity but described it as in "good faith."

During the meeting, Directors Lester and Cottle made clear their dissatisfaction with the actions of the Board. Lester criticized the Board's action on the basis that all three candidates had violated the bylaws which, according to Lester, should have prevented them all from being seated.

B. Procedural History

In May 2001 Rowland Waterman, an MEA member who had voted for Janecek, filed suit against MEA alleging violations of the bylaws, the Open Meetings Act, and the Alaska Constitution and seeking to compel the Board to seat Janecek. Waterman also sought a temporary restraining order (TRO).

Superior Court Judge Peter A. Michalski was temporarily assigned the case during Superior Court Judge Beverly W. Cutler's absence. After a hearing, Judge Michalski denied Waterman's request for a TRO.

Following discovery, both sides filed motions for summary judgment on Waterman's various claims. On February 7, 2002, Judge Cutler heard oral arguments on the summary judgment motions. Judge Cutler granted Waterman's motion for summary judgment on two grounds, concluding that the Board had violated section 11 of its bylaws when it refused to seat Janecek, and that MEA was estopped from enforcing its campaign disclosure regulations against Ja-necek because Janecek relied on MEA's disclosure forms and fully completed them. Judge Cutler also found that Waterman was a public interest litigant and awarded him full reasonable attorney's fees of $100,000.

Final judgment was entered on September 10, 2002, and the Board seated Janecek at its next regularly scheduled Board meeting on March 11, 2002. MEA appeals the superior court's decision to grant summary judgment in Waterman's favor.

III. STANDARD OF REVIEW

We review a superior court's grant of summary judgment de novo. Under that standard, we determine whether any genuine issue of material fact exists and whether the movant "is entitled to judgment on the law applicable to the established facts." We view the facts in the light most favorable to the non-movant, drawing all factual inferences in favor of the non-movant.

IV. DISCUSSION

A. The Superior Court Correctly Concluded That the Board Had Violated Its Bylaws by Refusing To Seat Ja-necek.

MEA argues that the superior court erred when it substituted its judgment for that of the Board and overturned the Board's decision not to seat Janecek. It contends that the business judgment rule applies and protects the Board's reasonable decision. Judge Cutler rejected MEA's claim that the Board's actions were reasonable and relied instead on the plain language of the bylaws. The trial court concluded that "the board had no discretion not to seat [Janecek]."

1. The relevant bylaws

Section 11 of the MEA bylaws is entitled "Campaign Disclosure," with section l1(g) and (i) controlling the treatment of candidates' campaign disclosure violations. Section 11(g) requires the Board to give candidates an opportunity to correct disclosure violations, while section 111) allows the Board to refuse to seat a candidate who does not make the corrective disclosure required by section 11(g). The relevant sections provide:

The following provisions of this bylaw apply to Board candidates who campaign for a seat on the Board of Directors. The Board shall adopt policies and prescribe such forms for the implementation of this section as the Board shall deem necessary.
(g) Any candidate who fails to fully disclose the information required to be filed with the Association as stated in sections (a), (b), (c), (d) and (e) above shall be notified in writing by the Board of the actions needed to fully comply and shall be given thirty (80) days from the receipt of notice to make the disclosure or file the appropriate report.

(@) A candidate who is found by the Board to be in violation of this section shall not be seated by the Board of Directors, and if seated shall be immediately removed from the Board by the Board if the candidate or Board members fails to make the disclosure required in (g) above, as provided by Article IV, Section 8.

2. Bylaw interpretation

MEA argues that the Board was simply doing its job by addressing violations of the campaign disclosure regulations. MEA relies on the managerial power granted to the Board by statute and its own bylaws, as well as the authority granted in the bylaws to regulate campaign disclosures and to adopt policies for the implementation of MEA's campaign disclosure bylaws. MEA further argues that Waterman's interpretation of the bylaws "would effectively render MEA's campaign disclosure rules a nullity." MEA contends that there are certain serious campaign disclosure violations that cannot be cured with the filing of a post-election correction report and that it is the Board's duty to distinguish such violations from those that are less serious.

In Afognak Native Corp. v. Olsen, we recognized that a board's interpretation of a corporate bylaw is not necessarily conclusive. The rules of contract interpretation apply to the interpretation of by-laws and include avoiding interpretations that create conflict among provisions.

MEA's position ignores the plain language of the bylaws. Section 111) states that "a candidate ... in violation of [§ 11] shall not be seated ... if the candidate ... fails to make the disclosure required in (g)" (Emphasis added.) Section l11(g) provides that "any candidate who fails to fully disclose the information required to be filed ... shall be notified in writing by the Board of the actions needed to fully comply and shall be given thirty days from receipt of notice to make the disclosure or file the appropriate report." (Emphasis added.) Taken together, these sections create a system whereby a candidate is to be notified of any disclosure violations and given thirty days to cure the violation. If, and only if, a candidate fails to provide such a cure is the Board permitted to refuse to seat that candidate. This procedure parallels the procedure described in article IV, section 8(e), which permits the Board to remove a board member when there is a violation that has not been corrected under section 11(g). Having been verbally notified at the April 9 Board meeting of concerns regarding his campaign disclosures, Janecek filed a correction report within thirty days. Janecek thus made a curative disclosure and satisfied all of the requirements of section 11(g).

The plain language of the bylaws prevents the Board from using its discretion to determine whether a candidate should be disqualified due to campaign disclosure violations. And the bylaws are based on solid policy. As Waterman notes, unfettered Board discretion to decide when a campaign disclosure violation merits refusing to seat a successful candidate would permit the Board to "refuse to seat a winning slate of reform candidates" or to choose not to seat its challengers. In Grimm v. Wagoner, we considered whether financial disclosure violations required a state senate candidate to forfeit an election. We reasoned that minor errors in disclosure did not interfere with the public's ability to judge the candidates; we instead emphasized the harm of "thwart[ing] voter intent" by depriving voters of the representatives they elect. The same concern arises here when a board is authorized to overcome the will of the members by selectively seating candidates. Rather, pursuant to section 5 of the bylaws, entitled "Removal of Board Member by Members," it is the members who "bring charges for cause" and who vote on the "question of the removal of such board member."

MEA's reliance on the business judgment rule is misplaced because a plain reading of the bylaws, and Janecek's undisputed compliance with the correction report requirements of section 11(g), leave no discretion to the Board to refuse to seat Janecek. Therefore, we affirm the superior court's grant of summary judgment in favor of Waterman.

v. CONCLUSION

Because the superior court correctly concluded that the Board violated its own bylaws by refusing to seat Janecek, we AFFIRM the superior court's determinations.

EASTAUGH, Justice, not participating.

      . Martinez v. Ha, 12 P.3d 1159, 1161 (Alaska 2000).

      . Id.; Geolar, Inc. v. Gilbert/Commonwealth Inc. of Michigan, 874 P.2d 937, 941 n. 8 (Alaska 1994).

      . Martinez, 12 P.3d at 1162.

      . ''The business of a cooperative shall be managed by a board of not less than five directors, each of whom shall be a member of the cooperative or of another cooperative which is a member of it." AS 10.25.140.

      . 'The business and affairs of the Association shall be managed by a board of seven (7) members which shall exercise all of the power of the Association except such as are by law, the Articles of Incorporation or these Bylaws, conferred upon or reserved to the members." MEA Bylaws Art. IV, § 1.

      . MEA Bylaws Art. IV, § 11).

      . ''The Board shall adopt policies and prescribe such forms for the implementation of this section as the Board shall deem necessary." MEA Bylaws Art. IV, § 11.

      . MEA describes Janecek's violations as "uncurable." While it might make sense to permit only pre-election "cures," the MEA bylaws do not contain this requirement. Judge Cutler found that Janecek fully filled out all of the forms. The Campaign Disclosure Statements provided by MEA only ask for various types of contributions. The court concluded that there was no space on the forms to indicate advertising that was hired out by the candidate and not yet billed by the advertiser since it is not a "contribution." We need not resolve the question whether the forms estopped MEA from enforcing the additional disclosure requirements.

      . 648 P.2d 991, 992 (Alaska 1982).

      . Storrs v. Lutheran Hosps. & Homes Soc'y of America, Inc., 609 P.2d 24, 30 (Alaska 1980); see also McMillan v. Anchorage Community Hosp., 646 P.2d 857, 862 (Alaska 1982).

      . Storrs, 609 P.2d at 30.

      . Article IV, section 3(e) of the MEA Bylaws states:
      Upon establishment of the fact that a, board member is holding the office in violation of any of the foregoing provisions or in violation of Article IV, Sections 11(a), (b), (c), (d), (e) and not corrected under Section 11(g), the Board shall remove such board member from office.

      . 77 P.3d 423 (Alaska 2003).

      . Id. at 432.

      . Id.


source: Caselaw Access Project

author: STEWART, Judge.

license: Public Domain

text:
    Kirk Merland CRAWFORD, Appellant, v. STATE of Alaska, Appellee.
    No. A-8082.
    Court of Appeals of Alaska.
    March 26, 2004.

      Brent R. Cole and Colleen J. Moore, Mar-ston & Cole, P.C., Anchorage, for Appellant.
    Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Ap-pellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

STEWART, Judge.

In Crawford v. State, 68 P.3d 1281 (Alaska App.2003), we remanded this case for additional findings from the superior court on the justification for the search of Kirk Merland Crawford's vehicle. The superior court found that the officer searching Crawford's vehicle had "a very real suspicion that [Crawford] possibly possessed a weapon" and "an articulable and reasonable basis to conclude the [center] console might contain a weapon." Based on those findings, which are supported by substantial evidence, we agree with the superior court that the search was justified. Accordingly, we affirm the superi- or court.

We discussed the facts in our first opinion in this case and need not repeat that discussion here. On remand, Superior Court Judge pro tem John R. Lohff heard additional testimony from Anchorage Police Officer Christopher Ritala before he entered his additional findings on remand.

Crawford argues that the superior court exceeded its authority by hearing additional testimony. Crawford points out that we specifically reminded the superior court that it could hold additional hearings in another case that we remanded for additional findings. Therefore, Crawford reasons, the superior court must refrain from hearing additional testimony on remand unless we authorize such testimony. Because our opinion in this case did not mention additional testimony, Crawford argues that the superior court heard that testimony without authorization. But the comment in the other deci-gion reminding the trial court of its authority to take additional evidence did not, by implication, establish a rule authorizing that procedure only if we mentioned that procedure in our decision. We recognize that the superior court was empowered to take additional evidence, in its discretion, so that it could meet its obligation to enter the additional findings.

In our previous decision in this case, we concluded that the officer's search of the center console of Crawford's vehicle could only be upheld as a search for weapons. Judge Lohff found that the testimony of Officer Indrek Oruoja established a number of facts: Crawford's driving was erratic because he was driving twenty miles per hour above the speed limit and made two double lane changes, without signaling, in less than four blocks. Officer Oruoja signaled Crawford to stop and Crawford stopped in a traffic lane. When Officer Oruoja used his loudspeaker to direct Crawford to move out of traffic onto a cross street, Crawford "made motions inside the vehicle to his lap area and to the right, fidgeting in the driver's seat as if he was moving an object around." Officer Oruoja contacted Crawford and asked him to shut off the vehicle and give him the keys, but Crawford refused. Crawford was nervous, agitated, and jumpy in a way that was different from a normal contact Officer Oruo-ja had with people he stopped.

Because Crawford was not cooperating, Officer Oruoja removed him from the vehicle and noticed a small baseball bat wedged between the driver's seat and the console. Crawford thrashed about and yelled profanities. Officer Oruoja testified that he thought "from a standpoint of safety, that there could be a weapon involved, he could either be concealing a weapon or producing a weapon."

With Officer Ritala's assistance, Officer Oruoja handcuffed Crawford, told him he was under arrest for reckless driving, and placed him in the patrol car. Officer Oruoja returned to Crawford's vehicle. He checked the console because, as he testified, "I was thinking that there could be some sort of a weapon inside" and found crack cocaine and cocaine paraphernalia. This discovery led to Crawford's conviction for fourth-degree misconduct involving a controlled substance.

Crawford argues that Judge Lohffs findings are not supported by the record. However, we must accept the superior court's findings unless Crawford convinces us that those findings are clearly erroneous. Because there is substantial evidence in the record supporting Judge Lohff's findings, we reject Crawford's claim and uphold the findings.

From those factual findings, Judge Lohff concluded that Officer Oruoja had an articu-lable and reasonable basis to search the console for a weapon. We agree. Judge Lohffs findings support the legal conclusion that Officer Oruoja's search of the console was justified as a search incident to arrest. Because the search was justified, we uphold Crawford's conviction.

Conclusion

The judgment of the superior court is AFFIRMED.

      . See Brown v. State, Alaska App. Memorandum Opinion and Judgment No. 4770 (Oct. 8, 2003), 2003 WL 22304141.

      . Crawford, 68 P.3d at 1283.

      . AS 11.71.040(a)(3)(A).

      . See State v. Joubert, 20 P.3d 1115, 1118 (Alaska 2001).

      . See Wilburn v. State, 816 P.2d 907, 911 (Alaska App.1991) (a reviewing court independently assesses whether the facts support a trial court's legal conclusions).


author: Justice RICE

text:
    Nancy L. HOFFMAN, Plaintiff, v. BROOKFIELD REPUBLIC, INC., Defendant.
    No. 03SA361.
    Supreme Court of Colorado.
    April 5, 2004.

      Holland & Hart, LLP, Steven C. Cho-quette, Marcy G. Glenn, Denver, Colorado, Attorneys for Plaintiff.
    Wood, Ris & Hames, P.C., Mark R. Davis, Kimberly A. Allegretti, Denver, Colorado, Attorneys for Defendant.
   Justice RICE

delivered the Opinion of the Court.

The Petitioner, Naney L. Hoffman, is a plaintiff in a personal injury case against the Respondent, Brookfield Republic, Inc. ("Brookfield"). Hoffman challenges the district court's order compelling her to disclose to Brookfield all records concerning her mental health care for the ten years preceding the accident underlying the case, as well as for psychotherapy which preceded even that ten-year period.

We issued a rule to show cause as to why the district court's order should not be reversed. We hold that Hoffman did not inject her mental condition into the case so as to impliedly waive her statutory psychotherapist-patient privilege merely by making a generic claim for "severe pain and suffering, and emotional distress" incident to the physical injuries sustained. Therefore, we now make the rule absolute.

I. FACTS AND PROCEDURAL HISTORY

In July 2000, Hoffman was injured when she slipped and fell on an outdoor stone staircase at a property owned and maintained by Brookfield. Hoffman's primary physical injuries as described in her complaint consisted of "severe bruising that lasted for weeks; the growth of a permanent fibrous mass beneath the skin of her left lower back/buttock; and the onset of recurring episodes of severe muscle spasms, sciatica, and severe, debilitating pain." In addition to seeking damages for these physical injuries, Hoffman sought recovery for "severe pain and suffering, and emotional distress," which she alleged were caused directly by the accident -and its resulting physical injuries. '

Through pretrial discovery, Brookfield sought further information regarding the nature and scope of Hoffman's claimed physical and emotional injuries Brookfield also sought "all records of any psychiatrist, psychologist, social worker, or other mental health professional who may have treated [Hoffman] at any time within the ten years prior to the incident, or after the incident," as well as "the name and address of each physician, therapist, psychologist or other medical or mental health care professional who has provided [Hoffman] with medical or mental care or treatment for the injuries complained of in the Complaint."

In response to Brookfield's written interrogatory, Hoffman provided a detailed account of her physical injuries as well as the resulting emotional distress. According to Hoffman, her emotional distress was characterized by "recurrent and very disturbing flashbacks of and nightmares about the fall and its aftermath"; "humiliation, embarrassment and heightened self-consciousness over her physical disfigurement"; "anxiety and concern with regard to dating and relationships"; "fear of stairs"; "psychological distress from knowing that, as a direct result of the injuries, she is more frail, experiences regular pain, has less energy, and is less active than she was before"; "worry, anxiety and dread that she never knows when or where she will be stricken by one of the debilitating spasms she has experienced since the fall"; "episodes of depression related to her fall and injuries, her physical deformity and altered self-image, her pain and achiness, her decreased strength and stamina, and the spasm episodes"; and frustration and anger based on her belief that Brookfield "could easily and inexpensively have prevented her fall" and her resulting "injuries, pain, inconvenience and abguish." Hoffman reiterated these details regarding her emotional distress at her deposition.

Although Hoffman objected to the request for her mental health records pre-dating the accident, she did disclose at her deposition that she had received regular psychotherapy for general emotional issues from Dr. Paulette Fire over a two-year period which ended approximately ten years before the accident, but that she had received no further treatment nor had she taken any medication for mental problems in the years between that counseling and the accident. Additionally, while she refused to provide releases for her psychotherapy records, she did agree to provide releases for all medical records covering the five-year period preceding the accident. Finally, Hoffman released the records for the single counseling session she had attended following the accident, during which she claimed not to have received any significant mental counseling.

Based on Hoffman's refusal to provide releases for her mental health records predating the accident, Brookfield filed with the district court a Motion to Compel Production of Documents and For Sanctions seeking full disclosure of all psychotherapy and other mental health records for the ten-year period prior to the accident as well as for her counseling with Dr. Fire. In support of its Motion, Brookfield asserted that Hoffman had impliedly waived her physician-patient privilege by pleading a mental condition as the basis of her claim. Hoffman objected to Brookfield's Motion, arguing that "because Ms. Hoffman has only claimed general emotional distress damages, she has not waived her privilege regarding any of her psychological records."

At the hearing on the issue, the parties debated whether Hoffman had sufficiently injected her specific mental condition into the claim so as to constitute an implied waiver of the psychotherapist-patient privilege as to her psychotherapy records. See, e.g., Johnson v. Trujillo, 977 P.2d 152 (Colo.1999) (plaintiff does not inject her mental condition into the case so as to impliedly waive psychotherapist-patient privilege by bringing a generic damages claim for mental suffering incident to physical injuries); Samms v. Dist. Court, 908 P.2d 520 (Colo.1995) (medical malpractice plaintiff impliedly waives physician-patient privilege by alleging physical or mental condition as basis for claim of damages). While Hoffman asserted that her claim was one for generic emotional distress incident to the physical injuries sustained, Brookfield pointed to the more specific description of distress provided by Hoffman in both her written interrogatories as well as in her deposition. Ultimately, the district court agreed that Hoffman had injected her mental condition into the case and further found that Brookfield was entitled to the withheld information in order to prepare its defense:

[I]f there's some other reason that she's responding in this incident to and having psychological distress, in addition to, or even in conjunction with, what occurred in this incident, these guys are entitled to know that. They're entitled to find out that.... [We are called upon when these cases are brought to balance specifically the interest of everybody involved. And whether by so doing, and by bringing such a claim in this case, and by making these types of responses in the discovery such that it puts the Defendants on notice, that these are the issues she's bringing up and this is what she's going to say at trial, well then absolutely to my mind, they have the right to go find out what's going on.

Thus, the district court apparently balanced Hoffman's interest in her psychotherapist-patient privilege against Brookfield's claimed need for the records in order to prepare its defense. Furthermore, the district court relied on the more particularized answers provided by Hoffman in the written interrogatories as demonstrating that Hoffman had alleged a more unique form of psychological distress than the generic emotional distress generally associated with a personal injury action, and had thereby "sufficiently injected her physical and mental condition into this case as the basis, in part, of her claims." As such, the court ordered Hoffman to release all mental health records for the ten-year period preceding the accident, as well as the records of her psychotherapy with Dr. Fire.

We issued a rule to show cause as to why the district court's order should not be reversed. Because we find that the district court erred in ordering Hoffman to produce her mental health records, we now make the rule absolute.

II. Analysis

A. Original Jurisdiction

We begin by noting that review here is appropriate due to the nature of the rights implicated and the potential for irreparable harm. Under C.A.R. 21, we have original jurisdiction to review whether a trial court has abused its discretion in cireuam-stances where the remedy on appeal would be inadequate. See Trujillo, 977 P.2d at 154; Kourlis v. Dist. Court, 930 P.2d 1329, 1330 n. 1 (Colo.1997). We have long recognized that a trial court's improper order requiring the disclosure of records which are protected by a statutory privilege may require immediate review because "the damage to [the holder of the privilege] will occur upon their disclosure regardless of the ultimate outcome of any appeal from a final judgment." Clark v. Dist. Court, 668 P.2d 3, 7 (Colo.1983) (reversing a trial court's discovery order where the defendant had not waived his privilege as to his psychiatric and psychological records regarding his drug and alcohol treatment); see also, e.g., People v. Sisneros, 55 P.3d 797, 799 (Colo.2002) (reversing a trial court's discovery order where the victim-witness had not waived her psychologist-patient privilege). Here, if Hoffman's prior mental health ree-ords are in fact privileged, then the damage caused by disclosure cannot be remedied on appeal. Thus, we find it appropriate to address the validity of the district court's order in this original proceeding.

B. The Privilege

In Clark v. District Court, we examined in detail the purpose and scope of the physician-patient privilege as applied to psychiatric and psychological records. 668 P.2d at 7-11. There, a conservator for the estates of the decedent's children brought a wrongful death action against a bar and its employee, Clark, who was acting as the bar's manager when he shot and killed the decedent in the bar's parking lot. Id. at 6. The conservator alleged that part of the bar's lability stemmed from its knowledge of Clark's "long history of mental illness including alcohol and drug abuse." Id. In his answer, Clark denied liability and asserted affirmative defenses including self-defense, defense of property, and contributory negligence. Id. at 6 n. 1. During discovery, the conservator sought access to Clark's treatment records, and the trial court ordered their disclosure over Clark's objection. Id. at 6-7. Upon review, we found that the trial court exceeded its discretion in issuing that order. Id. at 11.

Relying upon the statutory language of section 13-90-107(1), which states that are particular relations in which it is the policy of the law to encourage confidence and preserve it inviolate," we noted that the purpose of both the physician and psychologist privileges was "to enhance the effective diagnosis and treatment of illness by protecting the patient from the embarrassment and humiliation that might be caused by the physician's disclogure of information imparted to him by the patient during the course of a consultation for purposes of medical treatment." Clark, 668 P.2d at 8. Observing that these privileges, once attached, apply equally to in-court testimony and to pretrial discovery of information, we then went on to examine the requirements of a party seeking to overcome the claim of privilege. Id.

We first rejected the trial court's argument that the privileges should be qualified and therefore subject only to a balancing test weighing the holding party's interest in the privilege against the challenging party's need for the information. Id. at 9. Rather, finding no such limiting language in the statute regarding the privileges at issue, we held that "the only basis for authorizing a disclosure of the confidential information is an express or implied waiver." Id. Next, we addressed the issue of what constitutes such waiver and concluded that implied waiver may not be found "based on nothing more than the privilege holder's act of filing a pleading in a case in which his physical or mental condition may be an issue." Id. at 10. On the other hand, we noted that "[when the privilege holder pleads a physical or mental condition as the basis of a claim or as an affirmative defense, the only reasonable conclusion is that he thereby impliedly waives any claim of confidentiality respecting that same condition." Id. Thus, in Clark, because it was the plaintiff, and not the defendant, who had injected the defendant's mental condition into the case, we found that the defendant had not expressly or impliedly waived his privileges as to his past drug and alcohol treatment. Id. at 11.

A year later, in Bond v. District Court, we applied the holding in Clark to find that the plaintiffs, who brought a personal injury suit seeking compensation for physical injuries as well as damages for mental suffering and expenses for psychiatric counseling, had impliedly waived the physician-patient privilege as to their psychological and psychiatric ree-ords. 682 P.2d 33 (Colo.1984). Our finding of waiver in Bond was based on two distinct facts: first, the plaintiffs there "sought compensation for expenses they incurred in obtaining psychiatric treatment for emotional problems for which, they claim, the other party was ultimately responsible," Johnson v. Trujillo, 977 P.2d 152, 155 (Colo.1999) (discussing the holding of Bond), and, second, the plaintiffs in Bond conceded that they had injected their mental condition into the lawsuit as the basis of a claim. Bond, 682 P.2d at 38. As such, they had impliedly waived their physician-patient privilege as to the psychiatric records detailing that mental condition. Id.

We later looked to our holdings in Clark and Bond to determine whether a personal injury plaintiff impliedly waives her physician-patient and psychotherapist-patient privileges by bringing a more generic claim for emotional distress. In Johnson v. Tryjil-lo, a case particularly analogous to the one before us today, the plaintiff, Johnson, brought a personal injury case arising out of a motor vehicle accident in which she alleged physical injuries as well as general claims for emotional distress arising out of those injuries. 977 P.2d at 152. At her deposition, Johnson explained her emotional distress, stating that the accident had been "very upsetting" and "extremely emotional and seary," that she continued to worry about others involved in the accident as well as herself, that she was afraid of facing the surgery necessary for her injuries, and that she was concerned about how her son would be impacted by her injuries and her surgery. Id. at 158-54. Johnson further disclosed that she had undergone marriage counseling and divorcee after the accident and that she was also seeing a psychiatrist for depression at the time of the deposition. Id.

The defendant, Trujillo, thereafter filed a motion to compel production of Johnson's records from her marriage counselor as well as her psychiatrist, arguing that Johnson had "impliedly waived her physician-patient and psychotherapist-patient privileges because she had injected her mental condition into the case by claiming damages for mental anguish, emotional distress, pain and suffering, and loss of enjoyment of life." Id. at 154. The trial court agreed, and issued an order requiring Johnson to produce her records.

In an original proceeding, we found the trial court's order to be improper. Johnson argued that she was merely asserting a generic claim for mental suffering, which does not therefore inject any particular mental condition into the case so as 'to waive her privilege as to unrelated psychiatric records. Id. Trujillo, on the other hand, argued that Johnson had injected her mental condition into the case and that the information sought was necessary to her defense insofar as Johnson's mental suffering might be more attributable to some other cause, rather than the accident. Id. While recognizing that the information withheld might be somewhat relevant to Trujillo's defense, we concluded that even such relevant evidence might not be admissible and that "[sJuch sacrifice is warranted by the social importance of interests and relationships that the privileges seek to protect." Id. at 157. Additionally, we observed that Johnson was not seeking to "mak[e]l an unseemly, offensive use of the privilege," but rather was a typical tort plaintiff seeking general damages for the mental suffering which was incident to her physical injuries. Id.

Because Johnson did not seek counseling for emotional distress related to the accident, did not seek compensation for psychiatric or counseling expenses, and did not plan to call any expert witnesses regarding her emotional distress damages, we found that Johnson had not waived her privilege. Id. Furthermore, we noted that "[almongst those in our populace who, through no fault of their own, find themselves on the plaintiff side of a tort case, there will always be a certain proportion who have sought counseling for unrelated personal problems or who are suffering from unrelated emotional difficulties." Id. at 158. As a matter of public policy, therefore, we were unwilling to find waiver under circumstances where the plaintiff has not alleged any unique psychological harm and where the plaintiff's claim is unrelated to any mental health counseling which the plaintiff had sought. Id. In sum, we held:

[Bljare allegations of mental anguish, emotional distress, pain and suffering, and loss of enjoyment of life are insufficient to inject a plaintiff's mental condition into a case as the basis for a claim where the mental suffering alleged is incident to the plaintiffs physical injuries and does not exceed the suffering and loss an ordinary person would likely experience in similar circumstances.

Id.

Thus, it is well-established that the psychotherapist-patient privilege may not be overcome by an opposing party in the absence of an express or implied waiver by the party holding the privilege. A party may be deemed to have impliedly waived that privilege by injecting his or her mental condition into the case through a claim for damages or an affirmative defense. Nevertheless, a party does not sufficiently inject his or her mental condition into the case so as to constitute waiver merely by seeking damages under a generic claim of mental suffering which is incidental to the physical injuries underlying the suit. With these principles in mind, we now turn to the instant case.

C. Application

In her complaint, Hoffman sought damages for her physical injuries as well as for "severe pain and suffering, and emotional distress." In response to Brookfield's interrogatories and at her deposition, Hoffman further explained the nature of her suffering and emotional distress by providing details regarding the impact of her injuries on her mental state, her self-esteem, and various other aspects of her quality of life. Hoffman indicated no intention to have experts in psychology, psychiatry, or psychotherapy testify at trial, nor did she seek damages for the cost of any counseling. In fact, Hoffman has not sought any counseling related to her accident, with the exception of a single session, the record of which she has already released to Brookfield. As such, the relationship between any mental health records and Hoffman's claim against Brookfield is tenuous at best.

Nevertheless, under the guise of exploring Hoffman's emotional distress through the pretrial discovery process, Brookfield has sought to pry into Hoffman's personal life regarding matters having little or nothing to do with her slip-and-fall accident and its resulting injuries. In addition to seeking all mental health records for the ten years preceding the accident, Brookfield also sought full disclosure of Hoffman's psychotherapy with Dr. Fire, counseling which ended ten years prior to the accident and which, quite obviously, bore no direct relationship to the suffering Hoffman experienced due to the physical injuries sustained in the accident. While such records might have some extremely limited relevance insofar as Brook-field might allege that Hoffman's personal problems, rather than the accident itself, have contributed to Hoffman's emotional distress, we have already held that " 'relevance alone cannot be the test, because such a test would ignore the fundamental purpose of evi-dentiary privileges, which is to preclude discovery and admission of relevant evidence under prescribed circumstances.' " Johnson, 977 P.2d at 157 (quoting R.K. v. Ramirez, 887 S.W.2d 836, 842 (Tex.1994)). As such, the district court erred when it considered Brookfield's need for the information as a pertinent factor in determining whether the privilege had been waived. Rather, the only inquiry is whether Hoffman, by seeking damages for mental suffering, injected her mental condition into the case.

Hoffman's claim for emotional distress is nothing more than a garden variety mental suffering claim typical of most personal injury lawsuits, and therefore does not significantly inject her mental condition into the case. Moreover, the fact that Hoffman provided greater detail regarding the nature of her suffering, both in her written interrogatories and at her deposition, does not transform her generic claim for mental suffering into a peculiar assertion of psychological damages. Rather, Hoffman merely provided for Brookfield detailed information regarding the kinds of suffering about which she would be testifying to the jury. To find that Hoffman injected her mental condition, and therefore waived her privilege, by cooperating with Brookfield in her written interrogatories and in her deposition would not only defeat a statutorily created privilege with broad public policy implications, but would also thwart basic goals of pretrial discovery. See, e.g., Samms v. Dist. Court, 908 P.2d 520, 525 (Colo.1995) ("[The purpose of pretrial discovery is to eliminate surprise at trial, discover all relevant evidence, simplify the issues, and promote the expeditious settlement of cases.").

Here, Hoffman, like the plaintiff in Johnson, has not sought any significant counseling for distress related to the accident, has not sought compensation for psychiatric expenses, and does not plan to call any expert witnesses to testify regarding the nature and extent of her emotional distress. Rather, the mental suffering Hoffman alleges "is incident to her physical injuries and does not exceed the suffering and loss an ordinary person would likely experience in similar cireum-stances." Johnson, 977 P.2d at 157. As such, Hoffman did not inject her mental condition into the case so as to impliedly waive her psychotherapist-patient privilege. The district court therefore erred when it ordered Hoffman to disclose her mental health records.

III. CONCLUSION

We conclude that Hoffman did not waive her psychotherapist-patient privilege by making generic claims for mental suffering damages incident to her physical injuries. We therefore hold that the district court abused its discretion in ordering Hoffman to disclose her mental health records for the last ten years, as well as Dr. Fire's psychotherapy records. We now make the rule to show cause absolute.

      . Brookfield also alleged that Hoffman's attorneys had failed to provide them with the promised releases for her other medical records. The district court determined that any failure to produce the undisputed records was accidental, and declined to issue sanctions for the delay in production.

      . While section 13-90-107, 5 C.R.S. (2003), specifically applies to communications between physicians and patients, § 13-90-107(1)(d), and between psychologists and patients, § 13-90-107(1)(g), we have found that the privilege applies to psychiatrist-patient relations by treating them as a subcategory of physician-patient relations. See Bond v. Dist. Court, 682 P.2d 33, 37 (Colo.1984). Additionally, the psychotherapist patient privilege falls under the broader psychologist-patient privilege. § 13-90-107(1)(g). Thus, our analysis here applies equally to records of physicians, psychiatrists, psychologists, and psychotherapists.

      . Reviewing Brookfield's deposition of Hoffman, we note with concern the extent to which Brook-field's attorneys have strayed into matters which are irrelevant and inappropriate. For example, Hoffman, a single woman, had stated that the appearance of the lump on her buttocks has caused her "humiliation, embarrassment and heightened self-consciousness over her physical disfigurement" as well as "anxiety and concern with regard to dating and relationships." At no point did Hoffman claim that she had been openly criticized or personally harassed by others based on her appearance. Nevertheless, at the deposition, Brookfield questioned Hoffman regarding the number and names of men whom she had dated or who had otherwise seen the lump. When Hoffman and her attorney protested that such information was irrelevant and that Hoffman would be embarrassed if they were to question men whom she had dated briefly over the last several years, Brookfield's attorneys responded, "Well, you are the one making the claims. You can withdraw it, if you want." While we acknowledge the need for thorough and dedicated representation, we think it important to discourage counsel from engaging in questioning which appears designed to do little more than harass, embarrass, and beliitle the opposing party.


author: Judge TAUBMAN.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Michael John BOBRIK, Defendant-Appellant.
    No. 01CA0707.
    Colorado Court of Appeals, Div. V.
    Aug. 28, 2003.
    Certiorari Granted March 22, 2004.

      Ken Salazar, Attorney General, John D. Seidel, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Doug Barnes, Deputy State Public Defender, Martin Gerra, Deputy State Public Defender (On the Briefs), Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge TAUBMAN.

Defendant, Michael John Bobrik, appeals the judgment and sentences of 585 years in the Department of Corrections (DOC) entered upon his guilty plea to 141 counts of sexual offenses, consisting of 41 counts of sexual assault on a child as part of a pattern of sexual abuse, 41 counts of sexual assault on a child by one in a position of trust, 41 counts of aggravated incest, 15 counts of second degree sexual assault, and 3 counts of inducement of child prostitution, plus 4 crime of violence counts. We affirm in part, vacate in part, and remand for further proceedings.

The offenses were based upon defendant's sexual contacts with his two stepdaughters, R.R. and KR. Initially, the prosecution filed a 86-count information. However, the prosecution subsequently dismissed those counts and added 145 new counts. This resulted in two sets of numbers, counts 87-181 (old numbers) and 1-145 (new numbers). For convenience, we will refer to the counts by their new numbers, 1-145. All the counts allege the same dates, "between and including January 1, 1991 and April 29, 1996."

In the information, 105 counts named RR. as the victim, and 40 counts named KR. as the victim. Of the 145 counts, 188 specified different acts of sexual misconduct; there were 4 crime of violence counts; and 3 counts of inducement of child prostitution did not specify an underlying act. The alleged sexual acts with R.R. were: (1) fifteen counts of "simulated intercourse" (referred to as "humping"); (2) fifteen counts of "fondled genitalia"; (8) twenty counts of "digital penetration"; (4) fifteen counts of "manual eJaculation"; (5) twenty counts of "oral sex"; and (6) fifteen counts of "laying and ejaculating on victim." The alleged sexual acts engaged in with K.R. were: (1) fifteen counts of "naked massage"; (2) twenty counts of "digital penetration"; and (8) three counts of "manual ejaculation."

At the providency hearing, the prosecutor offered a factual basis for the guilty pleas. According to the factual basis, defendant began molesting R.R. within a year after marrying her mother. Numerous types of sexual contact occurred during the next several years, starting when RR. was ten years old and continuing until she was fifteen or sixteen.

The factual basis indicated: (1) "the humping incidents ... happened at least 830 times and at most 150 times"; (2) "(defendant] put his hand on her breasts ... at least 150 times and at most 200 times"; (3) "(defendant] touched her private area, but didn't put his fingers inside ... at least 50 times and at most 200 times"; (4) "(defendant] put his fingers inside her private part ... at least 50 times and at most 100 times"; (5) "[R.R.] ... brought him to manual ejaculation ... at least 50 times and at most 100 times"; (6) "[R.R.] gave him oral sex ... at least 50 times and at the most 100 times"; (7) "[defendant] ejaculated by rubbing his penis on her back ... at least 25 times and at most 50 times"; (8) "(defendant] ejaculated by rubbing his penis on [R.R.'s] stomach ... at least 25 times and at most 50 times"; (9) "the incidents involving her urinating on [defendant] occurred approximately a dozen times"; and (10) "the times it occurred with [defendant's] urinating on her also happened approximately a dozen times."

Regarding K.R., the factual basis indicated that the molestation occurred when she was between eight and ten years old. The prosecutor did not state the number of times sexual contact occurred with KR., but de-seribed the various forms of sexual contact: "The sexual abuse of KR. involved usually [defendant] being naked and [KR.] being naked and [defendant] giving her a naked massage, he would either fondle her genital area or digitally penetrate her. Then at a certain point [defendant] also began to have [KR.] manually masturbate him to efaculation."

At the providency hearing, defendant indicated that he agreed to the factual basis and pleaded guilty to all 145 counts. Defendant, subsequently requested indeterminate sentencing under the Colorado Sex Offenders Act of 1968 (the 1968 Act), which was denied by the trial court.

The prosecution filed a sentencing memorandum after the providency hearing but before sentencing. In that memorandum, the prosecutor calculated the sentencing range for defendant's offenses to be 585 to 1872 years in the DOC. The prosecutor stated that each pattern count was an enhancer to an associated count of sexual assault on a child by one in a position of trust, and there were 41 pairs of pattern and trust counts. The prosecution argued that each pair required a 10-year minimum DOC sentence. According to the prosecution, each of those sentences had to be consecutive because all the sexual assaults during the 5-year period arose from the same incident for purposes of the crime of violence statute.

The trial court sentenced defendant to a cumulative sentence of 585 years in the DOC. The court imposed (1) consecutive 10-year sentences on each position of trust count, for a total of 410 years, and concurrent 10-year terms for each pattern count associated with each trust count; (2) consecutive 10-year terms for 12 aggravated incest counts, for a total of 120 years; and (8) consecutive 5-year sentences for 11 counts of second degree sexual assault associated with a crime of violence, for a total of 55 years. All other sentences were to be served concurrently. This appeal followed.

At the outset, we note that because of the complexity of this case, the number of charges, and the relationship among them, both defense counsel and the People have attached appendixes to their briefs. We attach Appendix A to our opinion setting forth the counts and showing their relationship to one another.

I. Colorado Sex Offenders Act of 1968

Defendant contends the trial court abused its discretion in refusing to impose an indeterminate sentence under the 1968 Act. We disagree.

The purpose of the 1968 Act, § 18-1.3-901, .et seq., C.R.S.2002 (formerly § 16-13-201, et seq.), is "the protection of members of the public from proven dangerous sex offenders." People v. White, 656 P.2d 690, 693 (Colo.1983). The 1968 Act applies to offenses committed before November 1, 1998. Section 18-1.3-902, C.R.S.2002.

The 1968 Act allows courts to impose an alternative sentence of an indeterminate term of one day to life imprisonment, rather than a determinate sentence. However, a defendant has no constitutional or statutory right to be sentenced under the 1968 Act; the trial court has discretion to impose an indeterminate sentence. Section 18-1.3-904, C.R.S.2002; People v. Wortham, 928 P.2d 771, 774 (Colo.App.1996).

Here, after defendant requested sentencing under the 1968 Act, two required psychiatric reports and the probation department report were prepared. See §§ 18-1.3-908, 18-1.3-908, C.R.8.2002.

Based on these reports, the trial court found defendant remained a significant threat to society. One psychiatrist stated that he had no reason to believe that defendant would be able to control his sexual urges if he were released into the community. Additionally, he noted that while defendant indicated a desire for treatment, defendant's response to treatment was unpredictable. The other psychiatrist concluded that defendant was at a very high risk to reoffend based on several risk factors, and he could not safely be based in the community. The offense specific evaluation, attached to the probation report, noted that based on testing, defendant had tendencies to intimidate and exploit others and could display "a rash willingness to risk harm." Moreover, the offense specific evaluation described numerous instances where defendant admitted engaging in deviant sexual conduct. The offense specific evaluation also concluded that defendant could not live in the community, that he would benefit from the sex offender program in the DOC, and that he would need lifetime supervision.

Accordingly, based on these reports, the trial court did not abuse its discretion in imposing a determinate sentence rather than one pursuant to the 1968 Act. See People v. Breazeale, 190 Colo. 17, 26, 544 P.2d 970, 976 (1975).

IL Position of Trust and Pattern Counts

Defendant next contends the trial court erred in imposing consecutive ten-year sentences for forty-one counts of sexual assault by one in a position of trust based on the pattern enhancer counts because those counts do not refer to the crime of sexual assault by one in a position of trust, and because the statute authorizing a pattern enhancer was not enacted until after the dates alleged in the forty-one counts. In addition, defendant maintains the separate sentences imposed for the forty-one pattern counts must be vacated. We agree in part.

A. Issues Not Raised in the Trial Court

At the outset, we reject the People's assertion that we should not consider this issue because it was not raised in the trial court.

Here, when defendant pleaded guilty, he reserved the right to appeal the legality of his sentence. A challenge to an illegal sentence requires an "inquiry into the subject matter jurisdiction of the sentencing court and may not be waived." Downing v. People, 895 P.2d 1046, 1050 (Colo.1995); see also Crim. P. 35(a) (an illegal sentence can be corrected by the trial court at any time). Moreover, "[a] sentence imposed by a court that is not authorized by statute is illegal and void." Downing v. People, supra, 895 P.2d at 1049.

Thus, we consider the merits of defendant's contentions.

B. Position of Trust Counts

Defendant contends the trial court erred in sentencing him pursuant to the crime of violence statute for the pattern enhanced counts of sexual assault on a child by one in a position of trust because that statute applies only to offenses committed on or after July 1, 1998. We agree.

Sexual assault on a child by one in a position of trust is committed as follows:

Any actor who knowingly subjects another not his or her spouse to any sexual contact commits sexual assault on a child by one in a position of trust if the victim is a child less than eighteen years of age and the actor committing the offense is one in a position of trust with respect to the victim.

Section 18-8-405.8(1), C.R.8.2002.

A "pattern of sexual abuse" is "the commission of two or more incidents of sexual contact involving a child when such offenses are committed by an actor upon the same victim." Section 18-8-401(2.5), C.R.S.2002.

Under the current version of § 18-8-405.3, sexual assault on a child by one in a position of trust committed as part of a pattern is increased from a class 4 to a class 3 felony. Section 18-3-405.3(2)(b), C.R.S.2002. Further, under § 18-3-405.3(4), C.R.S.2002, if a defendant is convicted of that class 3 felony, the court must impose the mandatory sentence for a crime of violence provided in § 18-1.

Here, all the offenses were alleged to have occurred between 1991 and 1996, before the pattern enhancement and mandatory sentence for violent crimes were authorized in this situation. Therefore, even if the pattern enhancement counts had referred to the position of trust counts, they would not have been effective to enhance the penalties for the position of trust counts.

Thus, defendant's crime of violence sentences for the position of trust counts must be vacated. See Downing v. People, supra, 895 P.2d at 1049. Specifically, we vacate the sentences for counts 6-10, 21-25, 86-40, 57-61, 73-77, 94-98, 111-115, 126-180, and 148. Accordingly, we remand for resentencing on the position of trust counts without the application of the sentencing requirements of the pattern enhancement or the crime of violence statute. However, we note that the position of trust counts are all class 3 felonies without the pattern enhancer because they all allege that the victims were under fifteen years of age. See § 18-3-405.8(2)(a), C.R.S.2002.

In light of this disposition, we need not address defendant's related argument that resentencing is required for these counts because the pattern of abuse sentence enhancer counts did not incorporate or refer to the position of trust counts.

C. Pattern Counts

Defendant also maintains that the separate sentences imposed on forty-one counts alleging the pattern of sexual abuse enhancer must be vacated. More specifically, he asserts that a sentence enhancer cannot stand alone as the basis for a separate judgment of conviction to which a separate sentence attaches. We do not agree.

In People v. Melillo, 25 P.3d 769, 777-78 (Colo.2001), the supreme court held that a pattern count citing both the statute concerning sexual assault on a child and the pattern sentence enhancer was sufficient to charge both offenses. There, the defendant was charged with two counts of sexual assault on a child by one in a position of trust and one count of sexual assault on a child as part of a pattern of sexual abuse.

The defendant was convicted of sexual assault on a child as part of a pattern of sexual abuse, but was acquitted of one count of sexual assault on a child by one in a position of trust, and a mistrial was declared on the second position of trust count. The court concluded that the "[dlefendant had notice that he was not only being charged with sexual assault on a child, but also that he was being charged with committing the crime as part of a pattern of sexual abuse." People v. Melillo, supra, 25 P.3d at 779-80.

Here, defendant was similarly on notice that he was being charged with sexual assault on a child because the counts alleging the pattern offense referred to the statutes for both sexual assault on a child and the pattern sentence enhancer.

This conclusion is further supported by defendant's Crim. P. 11 advisement at the providency hearing. There, defendant was not advised that the pattern counts were enhancers of the position of trust counts. Instead, he was advised of the offense of sexual assault on a child as part of a pattern of sexual abuse. Even if the prosecution's sentencing memorandum asserted that each pattern count was an enhancer to an associated count of sexual assault on a child by one in a position of trust, it was not filed until after defendant pleaded guilty. Therefore, the sentencing memorandum could not have affected defendant's guilty plea.

Accordingly, the imposition of sentences for forty-one counts of sexual assault on a child as part of a pattern of sexual abuse was proper. Specifically, we affirm the sentences imposed on counts 1-5, 16-20, 31-35, 52-56, 68-72, 89-93, 106-110, 121-125, and 142.

D. Multiple Patterns

In a related argument, defendant maintains that resentencing is required because only one pattern enhancer can apply to the time period alleged for each victim. Specifically, he asserts that there could not have been multiple patterns because only one count referring to each victim could be the predicate offense for the pattern, and the remaining counts must represent the other instances of sexual contact forming the pattern of sexual abuse. Again, we disagree.

Defendant does not cite any authority to support his argument that there cannot be multiple patterns for each victim. The statutory language defining "pattern of sexual abuse" is not limited to one pattern for each victim. See § 18-3-401(2.5); see also People v. Longoria 862 P.2d 266, 271 (Colo.1993)("When the [General Assembly] defines a term in a statute, statutory construction requires that the term be given its statutory meaning.")(quoting R.E.N. v. City of Colorado Springs, 823 P.2d 1359, 1364 (Colo.1992)); cf. People v. Apodaca, 58 P.3d 1126 (Colo.App.2002)(courts will not follow a statutory construction that leads to an unreasonable or absurd result).

Thus, there can be one pattern count for each underlying substantive count. See § 18-8-401(2.5).

III. Double Jeopardy Clauses

Defendant also contends that the separate convictions and sentences for identically worded counts in the information violate state and federal double jeopardy clauses and must merge. We disagree.

In People v. Woellhaf, 87 P.3d 142, 146, 2003 WL 21403159 (Colo.App. No. 00CA2351, June 19, 2003), a division of this court concluded that identically worded charges in an information did not violate double jeopardy protection where the evidence and jury instructions specified the different types of sexual contact alleged in each count and the prosecution elected specific acts at the close of its case-in-chief. Further, each instance of sexual contact was "distinct, different, and factually separate." See also People v. Quintano, 81 P.3d 1093, 2003 WL 21511745 (Colo.App. No. 00CA2196, July 3, 2003)(defendant's convictions of three counts of sexual assault on a child were not multiplicitous, even though the offenses were committed in a relatively short period).

Here, as in Woellhaf, various groups of counts are identically worded, with each count in the group specifying a type of contact. Nee Appendix A. Because the factual bases supporting defendant's guilty pleas described numerous instances of each type of sexual contact occurring on different occasions, and are therefore separate and distinct, there is no basis to conclude that multiple identically worded counts must merge. Thus, we find Woellhaf persuasive and follow it here.

IV. Crime of Violence Counts

Defendant argues the four crime of violence counts, which referenced forty-seven substantive counts, charge an ex post facto violation and the enhanced crime of violence sentences imposed on those substantive counts must be vacated. Specifically, he contends that nothing in the record establishes whether the acts alleged in the substantive counts to which the crime of violence enhaneer attached occurred before or after July 1, 1994, the effective date of the applicable crime of violence statute. We disagree.

In part II(B), we vacated defendant's crime of violence sentence imposed for forty-one position of trust counts. Because twelve of the crime of violence counts at issue here (numbered 36-40, 61, 77, and 126-180), were vacated in part II(B), we will only address the remaining thirty-five counts. Those thirty-five counts consist of twelve pattern counts (numbered 31-85, 56, 72, and 121-125), twelve aggravated incest counts (numbered 41-45, 66, 82, and 181-185), and eleven second degree sexual assault counts (numbered 46-50, 87, and 186-140).

Here, defendant pleaded guilty to four crime of violence counts, which alleged that he either used threats, intimidation, or force or caused bodily injury to the victims during the commission of specifically enumerated substantive offenses alleged to have occurred between January 1991 and April 1996. Because the acts forming the basis for these counts may have occurred before July 1, 1994, the effective date of the crime of violence statute, defendant argues that all of the counts for which a consecutive sentence was imposed must be vacated.

The People maintain that, by pleading guilty, defendant waived his right to make this ex post facto argument. We agree with the People.

Under the crime of violence statute, a crime of violence includes "any unlawful sexual offense in which defendant caused bodily injury to the victim or in which the defendant used threat, intimidation, or force against the victim." Section 18-1.3-406(2)(b)(T), C.R.S. 2002 (formerly § 16-11-309(2)).

When a defendant enters a plea of guilty, he or she admits committing the substantive crime charged. A defendant thus waives various constitutional rights, including the right to insist at trial that the prosecution establish guilt beyond a reasonable doubt. Patton v. People, 35 P.3d 124 (Colo.2001).

However, a defendant does not waive a claim that a charge on its face is one for which the court lacked the power to enter a conviction or impose sentence in the first instance. Patton v. People, supra (citing United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989).

By pleading guilty, a defendant admits involvement in the crime up to and including the last date alleged in the charge. People v. Flagg, 18 P.3d 792 (Colo.App.2000).

As relevant here, an ex post facto law makes more onerous the punishment for a crime after its commission. People v. Graham, 876 P.2d 68 (Colo.App.1994).

A law violates ex post facto principles if it imposes punishment for a crime that is more severe than the punishment in effect when the crime was committed. People v. Flagg, supra.

Defendant's reliance on People v. Graham, supra, is misplaced. There, a division of this court vacated an enhanced sentence because it was impossible to tell from the jurors' verdict or answers to interrogatories whether the predicate offense they selected to justify the enhancement from a class 4 to a class 3 felony occurred after the relevant enhancement statute became effective. Here, in contrast, defendant pleaded guilty and, by doing so, waived his right to assert that the charged acts occurred before July 1, 1994. "Having admitted that the crime occurred between certain dates, the defendant cannot now claim otherwise." People v. Flagg, supra, 18 P.3d at 794.

Thus, defendant waived the right to challenge his plea to the above crime of violence counts and the resulting sentences.

Contrary to defendant's argument, the People do not now maintain that all the described acts occurred after July 1, 1994; rather, they simply maintain that defendant waived his right to assert otherwise.

We also reject defendant's related contention that his rights were violated because the prosecutor's factual basis stated during the providency hearing indicated that some of the incidents involving RR. and most of the incidents involving K.R. occurred before July 1, 1994. While this is an aceu-rate representation of the prosecutor's statements, some of the offenses occurred after July 1, 1994, and, as in People v. Flagg, supra, defendant waived his right to challenge the dates of the remaining offenses.

In sum, the judgment and sentences enhanced by a separate crime of violence are affirmed, except those on counts of sexual assault by one in a position of trust.

V. Consecutive Sentences

Finally, defendant contends the trial court erred by concluding that the assaults on the victims arose from the "same incident" and required consecutive sentencing under the crime of violence statute. We agree.

The crime of violence statute provides in pertinent part, "A person convicted of two or more separate crimes of violence arising out of the same incident shall be sentenced for such crimes so that sentences are served consecutively rather than concurrently." Section 18-1.8-406(1)(a), C.R.S.2002.

In People v. Beyer, 768 P.2d 746 (Colo.App.1988), a division of this court analyzed the term "incident" in this context:

[The word "incident" is not limited in meaning to a separate unit of experience, but is defined also as "an occurrence ... taking place as part of a larger continuum" or "a happening or related group of happenings" subordinate to a main plot. Hence, an incident may logically include a series of acts committed in close proximity or a chain of events forming a part of a schematic whole.

People v. Beyer, supra, 768 P.2d at 747-48 (quoting Webster's Third New International Dictionary 1142 (1986)). The Beyer opinion did not discuss the period of the incidents involved.

Here, the prosecution alleged the offenses occurred over a five-year period. At sentencing, the prosecution argued that RR. and KR. were subjected to a pattern in which each separate act "played off" the preceding acts, so that each victim was moved, little by little, to satisfy defendant's next sexual desire.

In People v. Woellhaf, supra, 87 P.3d at 149, a division of this court analyzed the term "incident" in the phrase "two or more incidents of sexual contact" in the definition of pattern of abuse, § 18-8-401(2.5), and held it referred to "distinct episodes of sexual assault" that are "separated by time or an intervening event." Similarly, here, "same incident" must refer to events that are not "separated by time or an intervening event."

The record before us does not show whether the individual acts of sexual contact occurred over a long time or in close proximity. The dates alleged in the prosecution's factual basis tend to show numerous incidents over a long time. Thus, we conclude that the trial court erred in determining that the sexual contacts involving RR. and KR. arose from the same incident and therefore required the imposition of consecutive sentencing.

Accordingly, we vacate the mandatory consecutive sentences imposed on counts 51, 67, 88, and 141 and the associated substantive counts, 31-85, 41-50, 56, 66, 72, 82, 87, 121-125, and 131-140. However, on remand, the trial court may, nevertheless, exercise its discretion to sentence defendant to consecutive or concurrent sentences. See People v. O'Dell, 53 P.3d 655, 657 (Colo.App.2001).

VI. Conclusion

The judgment is affirmed. The sentences are vacated to the extent that the sexual assault on a child-pattern counts were used as sentence enhancement for the sexual assault-position of trust counts, 6-10, 21-25, 36-40, 57-60, 78-77, 94-98, 111-115, 126-130, and 148. Because we have affirmed the pattern counts in part II(C) on the basis that each referred to an underlying substantive count, the sentence based on these pattern counts is affirmed. The imposition of consecutive sentences on counts 81-35, 41-50, 56, 66, 72, 82, 87, 121-125, and 181-140 is also vacated. In all other respects, the sentences are affirmed, and the case is remanded for further proceedings consistent with this opinion.

Judge CASEBOLT and Judge NIETO concur.


author: CAROL M. HANSEN, Judge.

text:
    2004 OK CIV APP 27
    The ESTATE of L. Merle CABELKA, by and through the Personal Representative, Kenneth CABELKA, Kenneth Cabelka, individually, Debra Ann McAlister, individually, and Larry Cecil Cabelka, individually, Plaintiffs/Appellants, v. COMANCHE COUNTY HOSPITAL, OF LAWTON, Oklahoma; David Behm, D.O., individually; and John Doe or Jane Doe, Defendants/Appellees.
    Nos. 99,072, 99,703.

    Court of Civil Appeals of Oklahoma, Division No. 3.
    Oct. 17, 2003.
    Rehearing Denied Dec. 12, 2003.

      Thomas J. Steece, Robert T. Kincaid, III, Oklahoma City, OK, for Plaintiffs /Appellants.
    Inona Jane Harness, Haven Tobias, Leslie D. Guajardo, Pierce Couch Hendrickson Bay-singer & Green, LLP., Oklahoma City, OK, for Defendant/Appellee, Comanche County Hospital.
    Hilton H. Walters, Janice M. Dansby, Travis K. Siegel, Rife & Walters, Oklahoma City, OK, for Defendant/Appellee, David Behm, D.0.

      . The cases were made companion cases by Supreme Court order of April 24, 2003.

   Opinion by

CAROL M. HANSEN, Judge.

1 In this action arising from the alleged wrongful death of L. Merle Cabelka (Decedent) in January 1997, Appellants-Decedent's estate and his children individually (collectively Appellants)-appeal from summary judgment in favor of Appellees, Comanche County Hospital and its employees Dr. David Behm and John or Jane Doe (collectively Hospital).

12 The Court of Civil Appeals previously considered this matter in Appeal No. 92,651 (hereafter Cabelka I), handed down by another division on May 25, 1999. That appeal was also from the trial court's grant of summary judgment in favor of Hospital. Hospital moved for summary judgment based on Appellants' failure to comply with notice provisions of the Governmental Tort Claims Act (GTCA), 51 0.8. Supp.1996 §§ 152 et seq. In Cabelka I, Appellants disputed neither the failure of notice nor that Hospital was a public trust. They instead contended Hospital was not entitled to the protection of the GTCA as a political subdivision because Comanche County, as beneficiary of the public trust under which Hospital operated, did not retain the requisite control over Hospital's operations.

T 8 In determining the issue of control, the Court of Civil Appeals in Cabelka I looked to the following definition of "political subdivision" found, in relevant part, at 51 0.8. Supp.1996 § 152(8)(d):

d. a public trust where the sole beneficiary or beneficiaries are a city, town, school district or county. For purposes of the [GTCA], a public trust shall include a ... county hospital ... that is operated for the public benefit by a public trust created pursuant to Section 176 et. seq. of Title 60 of the Oklahoma statutes and managed by a governing board appointed or elected by the municipality, county, or both, who ex-ereises control of the hospital, subject to the approval of the governing body of the municipality, county, or both, provided, ...

T4 The Court in Cabelka I found certain - language in the Declaration of Trust itself raised material questions of fact on control of Hospital by the county governing body, which the Court held precluded summary judgment "on the issue of whether Hospital qualifies for the privileges of the GTCA." The Court remanded the case to the trial court "for development of sufficient facts for a determination of the critical issue of whether the County's authority has been stripped to the extent that it disqualifies the Hospital Trust from qualification as a political subdivision under the GTCA." In its determination, the Court looked to the "control" factors set out in Roberts v. South Community Hospital, 1986 OK 52, 742 P.2d 1077, although recognizing amendments to the GTCA post-Roberts necessitated only a finding that the governing body had "approval" authority over Hospital.

15 In Cabelke I, the Court included a footnote considering the constitutional import of 51 O.S. Supp.1996 § 152(8)(d). While noting the issue had neither been raised in the trial court nor briefed by the parties, the Court questioned whether the Legislature, in § 152(8)(d), had "vested an entity that is private in nature, or at best a hybrid, with the privileges of governmental immunity." If so, the Court suggested, questions of "constitutional dimensions" were raised under Article II, § 6, and Article V, §§ 46 and 51 of the Oklahoma Constitution.

T6 Another issue discussed in the same footnote, and which was also not previously raised nor briefed, was a possible conflict with Article V, § 51 of the Oklahoma Constitution by granting "exclusive rights, privileges or immunities" to a "nonpublic enterprise". The Court cited Justice Opala's concurring opinion in Roberts v. South Community Hospital, 742 P.2d at 1084. There the Justice propounded the non-availability of governmental immunity for "nonpublic enterprises", which he defined as neither generating nor receiving public funds. The Cabelka I Court noted the lack of evidence of the exchange of public funds between Hospital and the county government.

T7 Upon remand, and after further discovery, Appellants filed their August 26, 2002 Primary and Alternative Motions for Summary Judgment on Pure Points of Law. In this motion, Appellants, basing their arguments substantially on the issues raised in the Cabelka I footnote, asked the trial court to summarily determine the constitutionality of 51 0.8. Supp.1996 § 152(8)(d) and 60 O.S. Supp.1996 § 176.1(F). Alternatively, Appellants contended they were entitled to summary judgment because [1] the record establishes insufficient control by the governing authority over Hospital, or, [2] Hospital has waived its immunity "by engaging in an ordinary business venture and competing with private hospitals." Appellants asked the trial court to declare Hospital "not immune from suit under the GTCA" and allow the matter to proceed to trial.

18 Hospital, and Dr. Behm separately, responded to Appellants' motion and asserted their own motions for summary judgment. Hospital contended its status as a public trust political subdivision pursuant to the GTCA did not violate either the Oklahoma or United States Constitutions. It further argued its status as a political subdivision under the GTCA, and Appellants' failure to provide the requisite notice, entitled it to summary judgment. Dr. Behm contended he was entitled to summary judgment under 51 O.S. Supp.1996 § 152.1(A) as Hospital's employee acting within the seope of employment, and additionally because Appellants had failed to show causation of injury.

T9 In granting summary judgment for Hospital, the trial court found Hospital was a public trust created for public benefit, that Hospital was a political subdivision within the definition of 51 O.S. Supp.1996 § 152(8)(d), and that Appellants had not filed written notice pursuant to the GTCA. In subsequent orders, the trial court disposed of all remaining claims by dismissing the claims against Dr. Behm, finding he was an employee of Hospital acting within the scope of his employment, and denying Appellants' Motion for Summary Judgment on Pure Points of Law. Appellants appeal from these trial court orders.

110 We review a grant of summary judgment de novo, that is, a non-deferential reexamination of the trial court's ruling, because the determination is whether a party is entitled to judgment as a matter of law. Cranford v. Bartlett, 2001 OK 47, 25 P.3d 918. Inferences and conclusions arising from the evidentiary materials are viewed in a light most favorable to the non-moving party. Id., at 920. Similarly, the question concerning Hospital's status as a "true public trust" under the GTCA is reviewable by a de novo standard. Offield ex rel. Offield v. Park View Hosp., 2002 OK CIV APP 104, 57 P.3d 135.

%T11 Appellants again do not contend Hospital is not a public trust created, as required by § 152(8)(d) of the GTCA, "pursuant to Section 176 et. seq. of Title 60 of the Oklahoma statutes." They instead argue the Legislature unconstitutionally erred in defining public trust hospitals as political subdivisions under § 152(8)(d) where the trust is "privately created/established/funded." While Appellants additionally assert, inter alia, appellate positions regarding the issue of "control" by the county government over Hospital, they effectively abandoned that issue in argument to the trial court when their counsel stated, "[wlith respect to the control issue, I'm not relying on that", and arguing instead the constitutional issues. See, Hoover v. Kiowa Tribe of Oklahoma, 1995 OK 136, 909 P.2d 59.

112 Appellants' constitutional contentions are premised upon their assertion Hospital was "privately created/established/funded" and that the Legislature cannot bestow sovereign immunity, an attribute of government, upon a private entity. Appellants relate this assertion to a number of arguments they make regarding the issues raised in the Cabelka I footnote and other constitutional claims. Those arguments fail, however, because the evidentiary material before the trial court does not support them. There is a strong presumption which favors the constitutionality of legislative acts. Black v. Ball Janitorial Service, Inc., 1986 OK 75, 730 P.2d 510. We will uphold a statute unless "it is clearly, palpably and plainly inconsistent with our fundamental law." Id., at 512.

113 Appellants contend Hospital's trust was created by one wealthy individual acting as Trustor in his private capacity. There is nothing in the record however to establish why or in what capacity the Trustor may have acted, or that he contributed anything to the trust estate. The Declaration of Trust does state the trust shall not be deemed or construed to be the creation of a public trust by the beneficiary, Comanche County, or its governing body.

1 14 For whatever legal purposes that provision may have been included, the record evidences Hospital had been built by Comanche County and had been functioning as a county hospital before the 1971 creation of the public trust under which it now operates. Hospital produced the affidavit of one who was trustee at the time the trust was created. That affidavit states no private money was contributed by the Trustor, or anyone else, to fund the trust. The record also reflects that Comanche County, on the day it accepted beneficial interest in the trust, leased to the Trust Authority the county's "hospital property, buildings, equipment and facilities", with no consideration other than installation and construction of improvements to the property to aid the county "in the performance of its public functions."

{ 15 The underpinnings of Appellants' constitutional contentions is that a distinction must be drawn in assignation of sovereign immunity between "publicly" and "privately" created public trusts. Presuming, without deciding, that Appellants' contention has merit, because they have conceded Hospital is a properly created public trust it is their burden to establish the facts pertaining to hospital. They have failed in that burden.

116 A party may not rely on the allegations in their pleadings, or the bald contention that facts exist, to defeat a motion for summary judgment. Culpepper v. Lloyd, 1978 OK 90, 583 P.2d 500. Stated another way, the trial court's ruling on summary judgment must be based on the record actually presented, not on that which is potentially possible. Frey v. Independence Fire and Cas. Co., 1985 OK 25, 698 P.2d 17.

T17 Appellants have conceded the Roberts criteria for "control" of public trusts by the governing authorities are no longer applicable under current statutes, but they do allude to the effect of "approval" authority by the governing entities in their list of appellate issues. The Court of Civil Appeals has previously considered the Roberts "control" issue in other cases. In Offield ex rel. Offield v. Park View Hosp., 57 P.3d at 138, with facts very similar to those before us, the Court found, as a matter of law, that the Roberts analysis did not apply.

1 18 The Offield Court noted that Roberts and its progeny concerned claims which arose when the GTCA either defined "political subdivision" to include public trusts, but without specific reference to hospitals, or expressly excluded hospitals operating under a trust authority from the definition. The Court there further noted that in 1987, after Roberts was handed down, the Legislature again amended 51 0.8. Supp.1987 § 152(8)(d) to specifically include hospitals "operated for the public benefit by a public trust." The Court of Civil Appeals construed the 1987 amendment "as the Legislature's response to Roberts and evincing an intent to change the law."

119 In another case with similar facts, Elledge v. Stillwater Medical Center, 2003 OK CIV APP 6, 62 P.3d 798, the Court of Civil Appeals again determined the Roberts factors were no longer relevant after the 1987 amendment to § 1528). The plaintiff/appellant had argued the hospital trust there was an "illusory trust" under Roberts because the city had no claim to the trust's income, no authority to transact the trust's business, no control over the trust's finances and no control over hiring decisions.

120 The Court in Elledge also looked to the mandate for separateness and independence between the public trust and beneficiary set forth in 60 0.8.2001 § 176.1(D). Reading this section with § 152(8)(d), the Court concluded:

. the [Llegislature intended to extend the [GTCA's] coverage to public trust hospitals that controlled their own budget and performed other management functions as provided by general public trust law. The relevant inquiry under current law is whether the exercise of control by SMC's trustees is "subject to the approval" of the city's governing body, as required by § 152(8)(d).
. The statute's "political subdivision" definition does not contemplate complete accountability by a trust, nor absolute control by a beneficiary. It intends general oversight by the beneficiary to ensure compliance with the trust indenture and the public trust statutes. In the absence of specific statutory directions, the manner in which such oversight needs to be carried out is a matter for the municipal beneficiary to determine.

121 The Elledge Court held the plaintiff failed in his burden to show the "city failed to approve some specific act for which approval was required by the trust document or the statutes, or refused to review some specific challenged or questionable act of the trustees." Appellants have also failed to make such a showing. There is no merit to their contention Hospital should not be deemed a political subdivision under the GTCA because Comanche County exercises insufficient "approval" authority.

122 Finally, Appellants complain the trial court erred in not forcing Hospital to cooperate in discovery and in not holding Hospital's motions for summary judgment in abeyance pending further discovery. These contentions also lack merit. The record shows Hospital did respond to Appellants' discovery requests. Appellants' supplemental discovery requests dealt with issues of care and treatment, not the dispositive issues before the trial court. As argued by Hospital, lack of discovery did not hinder Appellants in filing their own motion for summary judgment, which is premised on the same issues as put forth by Hospital in its counter-motions.

1 23 Viewing the evidentiary materials in a light most favorable to Appellants, we find there are no material facts remaining at issue and that Hospital was entitled to summary judgment as a matter of law. Cranford v. Bartlett, 25 P.3d at 920. Accordingly, the judgment of the trial court is AP-FIRMED.

JONES, J., and MITCHELL, P.J., coneur.

      . The appeal is submitted without appellate briefing in accordance with the accelerated procedure under Rule 1.36, Oklahoma Supreme Court Rules, 12 0.$.2001, Ch.15, App.

      . These constitutional provisions deal with, in order, access to the courts, prohibition on local and special laws, and granting of exclusive rights, privileges and immunities.

      . The latter sub-section conditions the remainder of § 176.1, which generally presumes public trusts meeting set criteria exist for public benefit, by providing that the section shall not affect coverage of any entity under the GTCA.

      . Section 176.1(D) provides that except where otherwise provided by statute or the trust indenture, "the affairs of the public trust shall be separate and independent from the affairs of the beneficiary in all matters or activities authorized by the written instrument creating such public trust, including. ...