author: Judge DAILEY.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert C. SALYER, Defendant-Appellant.
    No. 01CA0311.
    Colorado Court of Appeals, Div. IV.
    Feb. 13, 2003.
    Rehearing Denied April 24, 2003.
    Certiorari Denied Dec. 1, 2003.

      Ken Salazar, Attorney General, Patricia R. Van Horn, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

      David S. Kaplan, Colorado State Public Defender, Nancy J. Lichtenstein, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

       Justice MARTINEZ would grant as to the following issues:
      Whether the admission of testimony and prose-cutorial argument in a drug possession case, alleging that the defendant was a suspected murderer, a thief, doped up 12-year-olds, and preyed on victims of the Columbine tragedy, deprived defendant of a fair trial.
      Whether the court of appeals erroneously determined that a judge's absence from more than one day of the evidentiary portion of the trial does not constitute structural error.

   Opinion by

Judge DAILEY.

Defendant, Robert C. Salyer, appeals the judgment of conviction entered upon a jury verdict finding him guilty of possessing marijuana with the intent to distribute it, a class four felony. We affirm.

Defendant was eighteen years, nine months of age when, on February 14, 2000, two high school students were murdered at a store where he had been earlier that evening and at where he had previously worked. The next day, defendant was interviewed by law enforcement authorities, who suspected that the murders were drug related. During the interview, defendant admitted that he had sold marijuana for the past six months at the store. However, he said that after hearing about the murders, he removed a half pound of marijuana and a scale from his truck and “stashed” them in a field near an elementary school. He led the sheriffs officers to those items, telling them that because of the murders, he no longer planned to sell marijuana.

Defendant was interviewed again three days later by the sheriffs officers. He was subsequently arrested after refusing to participate in an undercover drug operation and alerting his source of drugs about the direction of the homicide investigation.

At trial, defendant argued that, although he possessed the half pound of marijuana, he did not intend to sell it and that it would, in any event, be unfair to convict him after he had been led to believe that, because of his cooperation in the homicide investigation, he would not be prosecuted for drug offenses.

The jury found defendant guilty of both possessing marijuana and possessing marijuana with the intent to distribute it. The trial court merged the verdicts and sentenced him to eighteen months probation on the greater crime.

I. Information

Initially, defendant contends that the information was insufficient to invoke the jurisdiction of the trial court. We disagree. As pertinent here, to invoke the jurisdiction of the trial court, an information must: (1) contain information from which it can be understood that the offense was committed within the jurisdiction of the court or is triable therein; and (2) provide adequate notice of the charge, as well as the factual circumstances surrounding the offense, so that the defendant can adequately defend himself or herself and the trial court can pronounce judgment upon a conviction. See § 16-5-202(l)(e), (d), C.R.S.2002; People v. Williams, 984 P.2d 56, 60 (Colo.1999).

Relying on Bustamante v. District Court, 138 Colo. 97, 329 P.2d 1013 (1958), overruled in part on other grounds by County Court v. Ruth, 194 Colo. 352, 575 P.2d 1 (1977), defendant argues that the information was juris-dictionally defective because it encompassed a period when he was a juvenile. Defendant asserts that as in I.R. v. People, 171 Colo. 54, 56, 464 P.2d 296, 297 (1970), the juvenile court has exclusive jurisdiction. We are not persuaded.

In Bustamante, the defendant was charged with committing a crime between two specific dates, one of which was beyond the applicable statute of limitations for the crime charged. The supreme court concluded that where the charging document “avers two dates, one of which is so remote as to be barred by the statute of limitations, it is defective” and beyond the jurisdiction of the court. Bustamante v. District Court, supra, 138 Colo. at 105, 329 P.2d at 1017.

Here, the information does not reference two dates, one of which would necessarily be beyond the jurisdiction of the trial court. Instead, it references but one date, February 14, 2000. Because that date fell nine months after defendant became an adult, and because the allegation stated “on and before” that date, we conclude that the information was sufficient to invoke the trial court’s jurisdiction over criminal cases. See Colo. Const, art. VI, § 9 (district courts have original jurisdiction in criminal cases, except as provided by law); § 19-2-104(7); C.R.S.2002 (juvenile court lacks jurisdiction “over a person for any offense committed after the person attains the age of eighteen years”).

Defendant also argues that the time allegation in the information was not sufficient to provide him with adequate notice of the charged offense. We disagree.

Ordinarily, an information need only answer the questions of “who, what, where, and how.” See People v. Steiner, 640 P.2d 250, 252 (Colo.App.1981); cf. People v. Tucker, 631 P.2d 162, 163 (Colo.1981)(indictment). The prosecution is not required tp specify the precise date of an alleged offense unless that date is a material element of the offense. See Roelker v. People, 804 P.2d 1336, 1340 (Colo.1991); see also Marn v. People, 175 Colo. 242, 247-48, 486 P.2d 424, 427 (1971).

Because a specific date is not an element of the crime of possessing marijuana with intent to distribute it, see § 18 — 18— 406(8)(b)(I), C.R.S.2002, here any indefiniteness regarding time was a matter of form, which did not deprive the court of jurisdiction and would not warrant reversal absent substantial prejudice to the defendant. ■See People v. Williams, supra, 984 P.2d at 63-65.

We discern no such prejudice in this case. Defendant neither complained in the trial court of an insufficiency in the information nor requested a bill of particulars, for good reason: the “on and before February 14, 2000” allegation was sufficient to apprise him that the charge related only to the marijuana recovered by sheriffs officers on February 15, 2000. His claim of surprise, raised for the first time on appeal, based on an alleged inability to defend against charges of prior acts, is unavailing: those acts were not the basis of the charge, and the record does'not reflect that he was unprepared for or surprised by evidence of the prior acts.

Defendant’s reliance on People v. Thimmes, 643 P.2d 780 (Colo.App.1981), is misplaced. In Thimmes, the division concluded that the indictment was fatally deficient because it failed to allege “any date upon which the alleged offense was committed.” See People v. Thimmes, supra, 643 P.2d at 782 (emphasis added). Here, in contrast, an actual date was alleged, namely “on and before February 14, 2000.”

Thus, we conclude the information was sufficient.

II. Voluntary Statements

Defendant contends that the trial court erroneously admitted statements that the sheriffs officers had involuntarily extracted from him by: (a) deliberately exploiting his , emotional vulnerability over the deaths of friends; and (b) assuring him, near the beginning of his February 15, 2000, interview, that they were interested in solving a murder and npt in his drug activity. We find no basis for reversal.

In the trial courts defendant grounded his motion to suppress only on evidence and argument concerning sheriffs officers’ statements made to him and his father following the conclusion of the interview "and the recovery of the marijuana. During the suppression hearing, he never asserted that psychological intimidation or earlier assurances by the authorities rendered his statements involuntary.

Inasmuch as the grounds upon which defendant now relies for relief were not raised in the trial court, we decline to consider them. See People v. White, 2002 WL 1339115, 64 P.3d 864, 869 (Colo.App. No. 99CA2415, June 20, 2002)(issues not raised in fourth amendment suppression hearing need not be addressed on appeal).

III. Videotape Evidence Procedures

Defendant contends that reversal is required by certain irregularities surrounding the jury’s viewing of his videotaped statements during the trial. According to defendant: (1) the court’s comments to the jurors concerning the videotape evidence improperly diminished the dignity and seriousness of the trial and the role of the jury and also were made in the absence of defense counsel; and (2) the judge’s absence during the playing of the videotapes was structural error. We are not persuaded that reversal is required.

A. Court’s Comments

The trial court met with the jurors for a few minutes to discuss the procedure for viewing defendant’s videotaped statements. From the record, it appears that this meeting was conducted without defense counsel being present.

At this meeting, the court informed the jurors that it would take longer than originally anticipated to view evidence of defendant’s videotaped statements and that, instead of finishing the case as expected on that day, the jurors would spend most of the day watching videotapes on television. The court mentioned that, in contrast to the situation where live witness testimony was being presented, it would permit jurors to have candy, drinks, and lunch in the courtroom while the videotapes were played. The goal, the court said, was to make the jurors comfortable while watching the videotapes.

Read in context, the remark about watching television conveyed nothing more than appropriate information about the medium by which the videotape evidence would be presented; and the remarks about allowing candy, drinks, and lunch — or even the remark about renting a movie theater made in response to one juror’s quip about getting couches — did not convey a sense that the jurors need not be attentive or that this evidence was less important than other evidence in the case. Rather, the court’s remarks were an attempt to preserve the attentiveness of the jury by making them comfortable about the prospect of viewing videotape evidence over a prolonged time.

However, relying on Key v. People, 865 P.2d 822, 825 (Colo.1994), defendant asserts the trial court erred, at the very least, in discussing these matters outside the presence of defense counsel. Even if under Key such discussions constituted a critical stage of the proceeding to which the right to counsel attached, we view any error here to be harmless beyond a reasonable doubt.

Defense counsel, who was immediately informed of the substance of the trial court’s discussion with the jury, did not request any precautionary or curative measures. The court’s discussion with the jury is a matter of record, and we perceive no prejudice to defendant arising therefrom. Cf. Key v. People, supra, 865 P.2d at 827 (court’s scheduling conference with jurors carried potential for coercing jurors into joining verdict; evidence of guilt was not overwhelming, and had counsel been present at conference, he could have observed and recorded juror reactions to the court’s decision).

B. Judge’s Absence from Courtroom

With the parties’ consent, the judge was absent during part of the time the videotapes were played.

The videotapes were approximately seven hours in length. From the record, we cannot tell how much time the judge was absent or present in the courtroom; his plan was to rotate the supervision of the viewing among himself and two members of his staff.

We recognize that, because there is ordinarily little that trial judges can do or expect to do during the reception of videotape evidence, they may well be tempted to find more productive uses of their time than simply sitting through the presentation of videotape evidence. See State v. Patterson, 31 Conn.App. 278, 303, 624 A.2d 1146, 1159 (1993)(use of judges’ time away from the courtroom during trial “to write memorandums of decision, to write jury charges, and to fulfill their myriad responsibilities” is “no doubt symptomatic of the pressures on the judiciary to control and move the overcrowded docket as quickly and effectively as possible”), rev’d, 230 Conn. 385, 645 A.2d 535 (1994); see also United States v. Grant, 52 F.3d 448, 449 (2d Cir.1995)(“Courts today are under enormous pressure to accomplish the huge volumes of work which our litigious society places on them. For a judge to sit idle in the courtroom during several hours of readbacks to the jury, performing little function other than the furnishing of a symbolic presence, deprives society of several hours of that judge’s productive time.”).

Nonetheless, a trial judge’s presence during a criminal trial is an integral component of a defendant’s constitutional rights to a jury trial and a fair trial. See, e.g., Riley v. Deeds, 56 F.3d 1117, 1119 (9th Cir.1995)(“The presence of a judge is at the ‘very core’ of the constitutional guarantee of trial by an impartial jury.”); People v. Vargas, 174 Ill.2d 355, 364, 220 Ill.Dec. 616, 673 N.E.2d 1037, 1041 (1996)(“a judge’s active presence on the bench during a criminal jury trial is an essential safeguard which aids in providing a defendant with a fair trial”).

'Consequently, as the supreme court recognized in People v. Garcia, 826 P.2d 1259, 1265-66 (Colo.1992), it is error for a judge to be absent from the courtroom and outside the hearing and sight of counsel and the jury while videotape evidence is being presented at trial.

Here, we cannot tell from the record whether the judge, while absent from the bench, remained within hearing and sight of counsel and the jury at all times during the presentation of the videotape evidence. And, we cannot presume that he did. Consequently, in accord with Garcia and the other authorities cited above, we conclude that constitutional error occurred when the judge left the courtroom during the playing of the videotape evidence.

Constitutional error ordinarily falls into one of two of categories: trial or structural. Griego v. People, 19 P.3d 1, 7 (Colo.2001). As a division of this court noted:

Trial errors are those that may be quantitatively assessed in the context of other evidence presented and are therefore subject to harmless and plain error analyses. Structural errors are the consequences of a defect in the trial that is necessarily unquantifiable and indeterminate, rendering the entire trial fundamentally unfair and warranting automatic reversal.

People v. Geisendorfer, 991 P.2d 308, 310 (Colo.App.1999).

Courts around the country have split over whether a judge’s absence from the courtroom during a critical stage of a criminal case qualifies as structural error. In those eases where structural error has not been found, “there has been either a finding of express or implied waiver of the right to the judge’s presence, or a determination that the judge, while technically absent, remained in ‘effective control’ of the proceedings.” Riley v. Deeds, supra, 56 F.3d at 1121.

Indeed, in United States v. Mortimer, 161 F.3d 240, 241 (3d Cir.1998), the court explicitly recognized that “[t]he structure [of a trial] normally stands if the parties consent to excuse the presence of a judge.” Cf. Commonwealth v. Burnett, 428 Mass. 469, 702 N.E.2d 803, 807 (1998)(“even structural error is subject to the doctrine of waiver”). Our caselaw is in accord with the principle articulated in Mortimer.

In People v. Garcia, supra, 826 P.2d at 1266, the supreme court recognized that a judge’s absence from the courtroom with the parties’ consent during the playing of videotape evidence could qualify as harmless error. The fact that the supreme court did so, despite citing Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), a case prominently discussing structural error, persuades us that the supreme court rejected the conclusion that structural error occurs when, as here, the judge leaves the courtroom with the consent of the parties.

Because the constitutional error here is not structural in nature, it is subject to harmless or plain error analysis. See Griego v. People, supra, 19 P.3d at 8-9. Like the court in Garcia, supra, we conclude that the error in this cáse was harmless beyond a reasonable doubt. The record reflects that the judge was present on the few occasions when issues came up concerning the logistics of playing the videotapes for the jury. No objection was made while or after the videotapes were played. And the court did not delegate to others the authority to exercise any judicial function, such as entering judgment, issuing rulings, or presiding over argument.

We reject defendant’s assertion that the judge’s absence was not harmless because, not having viewed all the videotape evidence, he was not in a position to properly rule on a motion for judgment of acquittal. Defendant does not direct our attention to any exculpatory material in the videotapes, and the trial court otherwise had ample evidence before it, in the form of live witness testimony, to - deny defendant’s motion for acquittal.

We wish to emphasize that it is error of constitutional magnitude for a judge, even with the parties’ consent, to absent himself or herself from the courtroom during the presentation of evidence to a jury. In this case, the error happened to be harmless beyond a reasonable doubt; in other cases, it might well require reversal on appeal.

IV. Other Bad Acts

Defendant contends that reversal is required because the trial court improperly admitted other bad acts evidence and allowed prosecutorial misconduct, related to this evidence, to occur during closing argument. We are not persuaded.

A. Evidence

Initially, defendant argues that the trial court erred in admitting evidence indicating that he had been a suspect in the homicide investigation, stolen money from the store, and dealt drugs in the past. We disagree.

Inasmuch as the homicide investigation was the mechanism by which the sheriffs officers came into contact with and obtained critical evidence about this case from defendant, the jury could not be expected to understand how this case unfolded without receiving at least some information about it. See People v. Quintana, 882 P.2d 1366, 1373 (Colo.1994)(admissibility of res gestae evidence).

We reject defendant’s assertion that the jury should not have been told that he might have been, or might still be, a suspect in the homicide,' or that he stole money from the store where the murders were committed. In his opening statement and cross-examination of witnesses, defendant referred to his having been a homicide suspect; and references to the murder and the theft were otherwise admitted via his videotaped statements, which he insisted be shown in their entirety to permit the jury to understand and assess how he had been treated by the police. Because defendant chose, as a matter of strategy, to inject this evidence into the case, he cannot, under the invited error doctrine, now complain about it on appeal. See, e.g., People v. Stewart, 55 P.3d 107, 119 (Colo.2002).

With respect to evidence of other drug activity, the prosecution introduced defendant’s videotaped admissions and the testimony of three witnesses that defendant had previously sold marijuana to others. The court admitted this evidence without either conducting a hearing on its admissibility or providing the jury with a limiting instruction.

Defendant did not object to the admission of the evidence, the lack of a hearing, or the lack of a limiting instruction. Consequently, reversal is not warranted absent a showing of plain error. See Crim. P. 52(b); People v. Kruse, 839 P.2d 1, 3 (Colo.1992).

Plain error is error that is obvious, substantial, and grave. It exists when, after a review of the entire record, a court can conclude with fair assurance that the error so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction. Moore v. People, 925 P.2d 264, 268-69 (Colo.1996).

Plain error did not occur here. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person to show that he or she acted in conformity therewith. Such evidence is admissible, however, for other purposes, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. CRE 404(b); Masters v. People, 58 P.3d 979, 995 (Colo.2002).

Here, evidence of defendant’s prior drug dealing qualified for admission because it tended to show, apart from any prohibited inference of bad character, that defendant possessed the marijuana recovered by the sheriffs officers with intent to distribute it. The evidence was particularly appropriate in light of defendant’s argument that he did not intend to distribute the marijuana. See also United States v. Vaughn, 267 F.3d 653, 659 (7th Cir.2001)(“proof of uncharged acts of drug trafficking are [sic] relevant and probative of whether a defendant had the intent to distribute drugs in his possession”). ■ And the evidence was not of such nature as would create overmastering hostility in the jury toward defendant. Consequently, we perceive no error, much less plain error, in its admission. See generally People v. Rath, 44 P.3d 1033, 1041 (Colo.2002).

Because no error was occasioned by the admission of the evidence, plain error did not arise from the lack of a hearing to determine its admissibility. See People v. Thompson, 950 P.2d 608, 614 (Colo.App.1997). Nor did plain error arise from the lack of a limiting instruction. See People v. Pineda, 40 P.3d 60, 67 (Colo.App.2001).

B. Argument

Defendant argues that the prosecutor unduly highlighted the shootings at Columbine High School, which defendant, a number of the witnesses testifying to defendant’s prior drug dealing, and the two homicide victims had attended. Defendant also asserts error based on the prosecution’s comments that defendant distributed drugs to and “doped up” twelve-year-olds and “essentially cheat[ed] his employer and [sold] drugs at the same time.” However, inasmuch as defendant objected to none of these remarks, reversal is not warranted absent a showing of plain error. See People v. Kenny, 30 P.3d 734, 741-42 (Colo.App.2000).

To qualify as plain error, prosecuto-rial misconduct not only must be flagrant or glaringly or tremendously improper, but also must so undermine the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction. People v. Gordon, 32 P.3d 575, 581 (Colo.App.2001).

Claims of improper argument must be evaluated in the context of the argument as a whole and in light of the evidence before the jury. People v. Kerber, 2002 WL 31600882, 64 P.3d 930 (Colo.App. No. 01CA1173, Nov. 21, 2002). Prosecutors are entitled to comment on the evidence presented, see People v. Griffith, 58 P.3d 1111, 1113 (Colo.App.2002), and they are allowed considerable latitude in responding ■ to defense counsel’s arguments. People v. Kenny, supra, 30 P.3d at 741.

Here, the prosecutor’s comments were grounded in the evidence and largely responsive to defense arguments that were intended to elicit sympathy from the jury, specifically, arguments about the devastating impact of the Columbine shootings and the unfairness of prosecuting defendant after he cooperated with law enforcement.

We do not condone all of the prosecutor’s remarks. Yet, when viewed in context and particularly in light of the Columbine comments and the fairness argument made by defense counsel, they were not so egregious and prejudicial as to constitute plain error. See People v. Gordon, supra, 32 P.3d at 581.

V. Jury Unanimity

Finally, defendant contends that the trial court deprived him of a unanimous jury verdict. We disagree.

When evidence of many acts is presented, any one of which could constitute the offense charged, and there is a reasonable likelihood that jurors may disagree on the act the defendant committed, the trial court must take one of two actions to ensure jury unanimity. The court must either require the prosecution to elect the transaction on which it .relies for conviction, or instruct the jury that to convict the defendant it must unanimously agree that the defendant committed the same act or committed all the acts included with the period charged.
The requirement of an election or a modified unanimity instruction assures that a conviction does not result from some members of the jury finding the defendant guilty of one act, while others convict based on a different act.

People v. Rivera, 56 P.3d 1155, 1159-60 (Colo.App.2002) (citations omitted).

Here, the trial court neither required an election between or among acts nor provided the jury with a modified unanimity instruction. However, because defendant requested neither action by the trial court, reversal is not warranted in the absence of plain error. See People v. Rivera, supra, 56 P.3d at 1159.

In Rivera, supra, 56 P.3d at 1160, the division found plain error when the trial court neither required an election nor provided a modified unanimity instruction. There, because of the defendant’s greatly varying types of involvement in several different transactions, a substantial likelihood existed that jurors could disagree regarding which act or acts supported the conviction.

Here, in contrast, there were but two types of illegal transactions: the first involving the marijuana recovered by the sheriffs officers on February 15, 2000, and the second involving the prior sales or gifts to others of purported marijuana.

The parties referenced both types in their closing arguments. However, both sides focused on the marijuana recovered by the sheriffs officers. At several points in the short closing argument, the prosecution applied the elements instruction to the recovered marijuana; and, in his closing argument, defendant chose, as a tactical matter, to acknowledge his guilt of only a lesser included offense in connection with the same transaction.

Given the parties’ arguments, we find no reasonable likelihood that the jury’s verdict could have been based on an act or acts other than that involving the recovered marijuana. Consequently, reversal is not warranted on this ground. See People v. Lawrence, 55 P.3d 155, 164-65 (Colo.App.2001)(rejecting finding of plain error where it was “unlikely that jurors could disagree or be confused as to which acts ... defendant committed or assisted in”).

Accordingly, the judgment is affirmed.

Judge ROTHENBERG and Judge KAPELKE concur.


source: Caselaw Access Project

author: Judge CASEBOLT.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Vernon VANREES, Defendant-Appellant.
    No. 01CA0149.
    Colorado Court of Appeals, Div. V.
    Feb. 13, 2003.
    Rehearing Denied April 10, 2003.
    Certiorari Granted Dec. 8, 2003.

      Ken Salazar, Attorney General, Matthew S. Holman, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Andrew C. Heher, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge CASEBOLT.

Defendant, Vernon Vanrees, appeals the judgment of conviction entered upon jury verdicts finding him guilty of attempted second degree murder, second degree assault, attempted first degree sexual assault, and first degree burglary. We affirm the conviction for second degree assault and reverse and remand for a new trial on the remaining charges.

The undisputed evidence established that, following his work shift at a restaurant, defendant voluntarily consumed a very large volume of alcohol, broke into a residence, physically assaulted the sixty-six-year-old victim, attempted to sexually assault her, and caused her serious bodily injury. During the assaults, defendant’s conduct ranged from confrontational, combative, and enraged assault, to meek pleading for sexual favors, to granting permission to the victim to kill him, to an expression of a desire to take his own life. After the assault, and at the victim’s request, defendant called for emergency assistance, and he was arrested at the scene.

By his own testimony, the twenty-nine-year-old defendant was “mentally slow,” always had been in special education classes, and never had lived apart from his parents. He knew the victim — his parents had been tenants of her parents — but he had not seen her for many years.

The victim could not identify any problems between the two families, had never had any dealings or conversation with defendant, and knew of no reason that he would want to hurt her. She characterized defendant’s conduct as bizarre and inexplicable.

Defendant professed no recollection whatsoever of the incident, agreed that he had never had any problems with the victim, and testified that he had no feelings for her and no reason to hurt her. His defense was voluntary intoxication and lack of mens rea.

During its deliberations, the jury sent the court a note that read: “Almost every count includes the term ‘knowingly.’ Can mental capacity, ‘slowness’ of an individual, or potential insanity be part of the knowingly definition[?] Please provide us a better definition of knowingly.”

Defendant requested the court to instruct the jury in response that mental capacity and slowness may be considered in determining whether the prosecution has proved the mens rea of knowingly beyond a reasonable doubt. However, the court rejected that proposal and instead instructed the jury:

The defendant has not entered a plea of not guilty by reason of insanity. Thus, whether the defendant suffered from a severely abnormal mental condition caused by mental disease or defect that grossly and demonstrably impaired his perception or understanding of reality is not an issue for your consideration.
You will not receive any additional instruction regarding the culpable mental state “knowingly,” other than that contained in Instructions Nos. 17 and 18.
In determining whether or not the element of “knowingly” has been proved beyond a reasonable doubt, you may consider any evidence, other than intoxication, presented in this case, or lack of evidence, that you believe to bear on that element.
You are reminded that you must consider the instructions as a whole.

Instruction 17, to which the supplemental instruction referred, told the jury, in relevant part:

A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such a nature or that such circumstance exists. A person acts “knowingly” with respect to a result of his conduct when he is aware that his conduct is practically certain to cause the result.

Instruction 18 informed the jury that it could not consider evidence of intoxication in determining whether the prosecution had proved the mental state of “knowingly” beyond a reasonable doubt, but could consider such evidence in determining whether defendant acted with intent and after deliberation. It also defined intoxication as a “disturbance of mental or physical capacities resulting from the introduction of any substance into the body.”

The trial court, explaining its reasoning for the supplemental instruction, stated that the instruction on insanity inured to defendant’s benefit, because if it had told the jury only that defendant had not entered an insanity plea, the jury would not know how insanity was defined. It further observed that the jury had referred to the concept of mental capacity and that the prosecution was required to prove not that defendant had the capacity to form the culpable mental state of knowingly, but that he actually had this culpable mental state beyond a reasonable doubt.

This appeal followed defendant’s conviction.

We note that counsel asserted at oral argument that defendant is “developmentally disabled.” However, that term was not employed during trial to describe defendant’s condition. Accordingly, we use the terms employed at trial.

I.

Defendant contends the trial court’s supplemental instruction erroneously precluded the jury from considering his “mental slowness” and low mental capacity in determining whether the prosecution had proved that he acted knowingly beyond a reasonable doubt. Specifically, defendant contends that, by addressing only the issue of insanity and not “mental slowness” or capacity, and by providing that the jury could not consider insanity, the court’s instruction erroneously permitted the jury to determine that evidence of his “mental slowness” and low mental capacity fell within the given definition of insanity and thus could not be considered. We agree.

Generally, we presume that a jury understands the instructions it is given. Copeland v. People, 2 P.3d 1283 (Colo.2000); Leonardo v. People, 728 P.2d 1252 (Colo.1986). However, that presumption is rebutted when, as here, the jury indicates that it does not understand an element of the offense charged or some other matter of law central to the guilt or innocence of the accused. See Leonardo v. People, supra, 728 P.2d at 1256.

Here, the parties agree, and we concur, that an additional instruction was appropriate. The jurors were unclear as to whether they could consider defendant’s “mental slowness” or capacity to determine whether he knowingly committed the crimes charged, and the relevant instructions provided no clear answer to this question. Whether defendant acted knowingly was central to his guilt or innocence, and the definition of “knowingly” presents a question of law.

A defendant’s right to due process requires correct jury instructions bearing on the prosecution’s burden to prove the defendant guilty beyond a reasonable doubt. People v. Harlan, 8 P.3d 448 (Colo.2000); see also Chambers v. People, 682 P.2d 1173 (Colo.1984)(jury must be adequately instructed to enable it to assess whether every element of an offense has been proved beyond a reasonable doubt).

A plea of insanity is waived if it is not specifically pleaded at the time of arraignment or, upon a showing of good cause, prior to trial. Section 16-8-103(1.5)(a), C.R.S. 2002; People v. Low, 732 P.2d 622, 630 (Colo.1987)(evidenee of insanity irrelevant and inadmissible at a trial on the merits in the absence of a special plea). However, if a defendant’s “mental slowness” does not rise to the level of insanity or impaired mental condition, he or she is not required to plead such a defense in order to present evidence regarding that mental condition as it bears on mens rea. See Hendershott v. People, 653 P.2d 385 (Colo.1982); People v. Requejo, 919 P.2d 874 (Colo.App.1996).

Here, in response to the jury’s question whether “potential insanity [can] be part of the knowingly definition,” the trial court was faced with a difficult task in trying to define the various mental conditions that could apply. Its supplemental instruction accurately informed the jury that defendant had not asserted insanity. The instruction also gave the jury a definition of insanity (“a severely abnormal mental condition caused by mental disease or defect that grossly and demonstrably impaired his perception or understanding of reality”), adapted from § 16-8-101.5, C.R.S.2002. However, the instruction did not inform the jury that it could consider evidence of defendant’s “mental slowness” and capacity in assessing whether he knowingly committed the crimes charged, but instead simply referred the jury to some original instructions. Essentially, it thus failed to answer part of the jury’s question. See Leonardo v. People, supra, 728 P.2d at 1255 (a jury should be referred back to instructions only when it is apparent that it has overlooked some portion of the instructions or when the instructions clearly answer the jury’s inquiry).

The jury may have erroneously understood the court’s instructions to preclude consideration of “mental slowness” or capacity because such ■ evidence fell within the insanity definition provided. For example, it could have concluded that defendant’s “mental slowness” constituted an “abnormal mental condition” that “impaired his perception or understanding of reality.” Therefore, the jury could have concluded that such evidence “was not an issue” for its consideration.

Thus, while the court’s instruction on insanity was not per se erroneous, it did not provide the jury with a meaningful distinction between insanity and the less severe mental conditions, and it did not explain the legal implications of those conditions. In the context of defendant’s case, we view this distinction as critical. By focusing only on the jury’s reference to insanity and not addressing the jury’s question regarding “mental slowness,” the instruction could have precluded the jury from considering this aspect of the defense and thus impermissibly lowered the prosecution’s burden of proof. See Hendershott v. People, supra (it is a violation of due process to require the prosecution to establish the culpable mental state beyond a reasonable doubt while, at the same time, prohibiting a defendant from presenting evidence to contest this issue).

Hence, the jury was allowed to find defendant guilty of the charged crimes without necessarily finding beyond a reasonable doubt that he was aware that his conduct was practically certain to cause the proscribed results. See § 18-1-501(6), C.R.S.2002.

The People argue that paragraph three of the supplemental instruction — allowing the jury to consider any evidence introduced at trial, except intoxication, to determine whether defendant had formed the mental state of knowingly — adequately informed the jury that it could consider defendant’s “mental slowness.” However, this paragraph did not mention “mental slowness” or mental capacity. Moreover, if the jury mistakenly believed that “mental slowness” fell within the definition of insanity, and thus was not to be considered, then the cited paragraph would not correct this mistake. Hence, we reject this argument.

Nor can we conclude that the error is harmless beyond a reasonable doubt. See Topping v. People, 793 P.2d 1168 (Colo.1990); People v. Gracey, 940 P.2d 1050 (Colo.App.1996) (failure to instruct the jury properly with respect to an essential element of the offense charged generally constitutes reversible error); People v. Requejo, supra (error not harmless if it affects the outcome of the trial). A central theme in this case was defendant’s “mental slowness.” If the jury erroneously believed it was not allowed to consider such evidence in making a determination of knowingly, then defendant was surely prejudiced. See Leonardo v. People, supra (court erred in failing to respond adequately to the jury’s inquiry).

We must accordingly reverse defendant’s convictions for attempted second degree murder, attempted first degree sexual assault, and first degree burglary, all of which required the mens rea “knowingly.” Given this disposition, we need not address defendant’s additional contentions of error concerning this instruction.

However, defendant was also convicted of second degree assault, a crime that requires specific intent. See § 18-3-203(l)(b), C.R.S. 2002. Defendant does not challenge the court’s instructions concerning specific intent, nor does he assert in his opening brief that the instructional error concerning “knowingly” affects this conviction.

Because there was no jury confusion concerning the role of defendant’s acknowledged “mental slowness” or capacity in determining specific intent, we must presume the jury understood those instructions. See Leonardo v. People, supra, 728 P.2d at 1255. Reversal of the other three convictions does not mandate reversal on the second degree assault conviction because the error relates only to those convictions involving the mens rea “knowingly.” See People v. Martinez, 634 P.2d 26, 31 (Colo.1981). Accordingly, we affirm the judgment of conviction on that count.

II.

Because it will arise on remand, we address and reject defendant’s contention that the trial court erred by refusing to instruct the jury that intoxication is an affirmative defense.

Defendant asserted the “affirmative defense” of intoxication under §§ 18-1-804(1) and 18-1-805, C.R.S.2002. Relying upon People v. Harlan, supra, the trial court refused to instruct that it was an affirmative defense. In Harlan, decided approximately three months after the acts at issue here, the supreme court determined that § 18-1-804 concerning voluntary intoxication does not provide a statutory affirmative defense, but rather constitutes an evidentiary rule permitting such evidence to negate specific intent.

Defendant contends Harlan was an unforeseeable enlargement of a criminal statute because Colorado law previously had regarded voluntary intoxication as an affirmative defense. He .argues that the trial court’s retroactive application of Harlan violates the Ex Post Facto and Due Process Clauses of the federal and state constitutions. Because we find that the decision in Harlan was foreseeable, we disagree.

Under both constitutions, the enactment of an ex post facto law is prohibited. As relevant here, a statute violates the Ex Post Facto Clause when it deprives a defendant of a defense that was available at the time the crime was committed. See People v. District Court, 834 P.2d 181, 199 (Colo.1992); Aue v. Diesslin, 798 P.2d 436 (Colo.1990).

Judicial decisions generally are not subject to ex post facto prohibitions. See Rogers v. Tennessee, 532 U.S. 451, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001)(Ex Post Facto Clause limits the powers of the legislature and does not of its own force apply to the judicial branch of government); Aue v. Diesslin, supra (judicial decisions normally are applied retrospectively to conduct that occurred before the decision was rendered); People v. Grenemyer, 827 P.2d 603 (Colo.App.1992). However, similar principles are applicable under the Due Process Clause. Aue v. Diesslin, supra, 798 P.2d at 439; see also Rogers v. Tennessee, supra (holding that limitations on retrospective judicial decision-making arise from the Due Process Clause, not the Ex Post Facto Clause). Therefore, we address defendant’s argument solely on due process grounds.

To determine whether due process precludes the retrospective application of a judicial decision in a criminal case, we must decide whether the decision was sufficiently foreseeable so that the defendant had fair warning that the interpretation given to the relevant statute would be applied in his or her case. Aue v. Diesslin, supra, 798 P.2d at 441. In "determining foreseeability, we first look to the plain language of the statute. See Aue v. Diesslin, supra (holding was foreseeable because it was based on the plain language of the statute, and parole board’s erroneous interpretation did not compel different result).

Section 18-1-804 provides in pertinent part:

(1) Intoxication of the accused is not a defense to a criminal charge, except as provided in subsection (3) of this section, but in any prosecution for an offense, evidence of intoxication of the defendant may be offered .tyy the defendant when it is relevant to negative the existence of a specific intent if such intent is an element of the crime charged.
(3) A person is not criminally responsible for his conduct if, by reason of intoxication that is not self-induced at the time he acts, he lacks capacity to conform his conduct to the requirements of the law.

The plain language of § 18-1-804 does not provide that voluntary intoxication is an affirmative defense. Section 18^1-804(1) specifically states that voluntary intoxication is not a defense to a criminal charge. Rather, only involuntary intoxication, described under subsection (3), negates criminal liability.

Further, § 18-1-805, heavily relied upon by defendant, states that “[t]he issue of responsibility under sections 18-1-801 to 18-1-804 is an affirmative defense” (emphasis added). Section 18-1-804 only mentions responsibility under subsection (3), which addresses involuntary intoxication. Accordingly, only involuntary intoxication constitutes a statutory affirmative defense under these provisions.

Defendant cites numerous Colorado cases that refer to voluntary intoxication as an affirmative defense. See, e.g., People v. DelGuidice 199 Colo. 41, 44, 606 P.2d 840, 842 (1979)(“The second issue raised in this appeal concerns the affirmative defense of voluntary intoxication”), disapproved on other grounds by People v. Harlan, supra; People v. Cornelison, 192 Colo. 337, 559 P.2d 1102 (1977)(stating voluntary intoxication is an affirmative defense to specific intent crimes generally). However, none of the cited cases directly considers whether voluntary intoxication is an affirmative defense. To the contrary, in People v. Comelison, supra, the court stated that “a defendant’s voluntary intoxication may be evidence of his inability to entertain the specific intent required for conviction of second-degree murder.” People v. Cornelison, supra, 192 Colo. at 340, 559 P.2d at 1105.

In addition, an affirmative defense basically admits the doing of a charged act, but seeks to justify, excuse, or mitigate it. See People v. Huckleberry, 768 P.2d 1235 (Colo.1989). Intoxication, however, has been recognized as negating the specific intent mental state, but not as operating to justify or excuse the commission of an offense. See Dolan v. People, 168 Colo. 19, 449 P.2d 828 (1969); cf. People v. Braley, 879 P.2d 410 (Colo.App.1993)(in sexual assault case, trial court did not err by failing to instruct that consent was an affirmative defense; by finding that defendant caused submission, jury necessarily found that victim did not consent).

Furthermore, in People v. Quintana, 996 P.2d 146, 148 (Colo.App.1998), decided well before the acts at issue here, a panel of this court held, “[Vjoluntary intoxication does not constitute an affirmative defense to a crime. It is used only to negate specific intent when that intent is an element of the crime charged.”

Defendant also cites the Model Criminal Jury Instructions, which have stated since 1983 that voluntary intoxication is an affirmative defense. See CJI-Crim. 7:13 (1983). However, model instructions are intended as guidelines and are not wholly determinative. See CJI-Crim. at v. A model jury instruction does not constitute the law of the state. See Guam v. McGravey, 14 F.3d 1344 (9th Cir.1994).

For all these reasons, we conclude that it was foreseeable that the supreme court would hold voluntary intoxication could not be considered am affirmative defense. Because this judicial decision in Harlan was sufficiently foreseeable,. defendant had fair warning of this interpretation of the statute and therefore was not deprived of due process.

III.

Defendant next contends the trial court erred in instructing the jury that intoxication should not be considered in determining whether the prosécution had proved the mental state of knowingly beyond a reasonable doubt. Specifically, defendant contends § 18-1-804(1) does not prohibit the introduction of evidence of voluntary intoxication with respect to the mens rea of knowingly. We disagree.

Colorado courts have consistently interpreted § 18-1-804(1) as excluding evidence of voluntary intoxication when offered to negate the culpability element of knowingly. See People v. Aragon, 653 P.2d 715 (Colo.1982); People v. Bieber, 835 P.2d 542, 545 (Colo.App.1992), aff'd, 856 P.2d 811 (Colo.1993). The General Assembly has not altered the statute following this construction. Therefore, we perceive no reason to depart from this settled interpretation. See Mason v. People, 932 P.2d 1377 (Colo.1997).

Defendant nevertheless contends that, if, following Harlan, the statute does not allow voluntary intoxication evidence to negate the element of knowingly, then it violates his due process rights to present a defense and to trial by jury. Because we find People v. DelGuidice, supra, dispositive on this issue, we disagree.

In People v. DelGuidice, the supreme court held that a defendant’s due process rights were not violated by the predecessor of § 18-1-804(1), which precluded introduction of evidence of voluntary intoxication to negate general intent. The court stated: “The Colorado common law and. statutory rule which makes evidence of voluntary intoxication incompetent to disprove general intent when that mental- state is an element of a criminal charge is supported by weighty policy choices about the extent to which drunkenness can excuse criminal responsibility.” People v. DelGuidice, supra, 199 Colo. at 46, 606 P.2d at 844.

Defendant argues that DelGuidice is inapplicable because, when it was decided, intoxication was viewed as an affirmative defense. Defendant asserts that, following the holding of People v. Harlan that intoxication is not an affirmative defense, the due process analysis of DelGuidice no longer applies because that analysis addressed the defendant’s right to an affirmative defense, whereas the current situation involves a defendant’s right to present any evidence of voluntary intoxication. We are not persuaded.

DelGiddice did not rest on the characterization of intoxication as an affirmative defense. Rather, the court held that it was within the competence of the General Assembly to determine that voluntary intoxication would not excuse crimes of general intent. This analysis is equally applicable here.

We therefore conclude that the trial court did not err in instructing the jury that it should not consider evidence of intoxication in determining whether the prosecution had proved the mental state of knowingly beyond a reasonable doubt. Hence, in a similar evi-dentiary posture on remand, this instruction may again be given.

IV.

In view of our disposition reversing defendant’s conviction for attempted first degree sexual assault, we need not reach his contentions regarding the constitutionality of the 1998 Colorado Sex Offender Sentencing Act, § 18-1.3-901, et seq., C.R.S.2002.

The judgment of conviction for second degree assault is affirmed. The judgment of conviction for attempted second degree murder, attempted first degree sexual assault, and first degree burglary is reversed, and the case is remanded for a new trial on those charges.

Judge TAUBMAN and Judge NIETO concur.


author: Judge NIETO.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Elijah E. BEATTY, Defendant-Appellant.
    No. 00CA2090.
    Colorado Court of Appeals, Div. V.
    Feb. 27, 2003.
    As Modified on Denial of Rehearing July 3, 2003.
    Certiorari Denied Dec. 15, 2003.

      Ken Salazar, Attorney General, Wendy J. Ritz, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Keyonyu X O’Connell, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge NIETO.

Defendant, Elijah E. Beatty, appeals the judgment of conviction entered on jury verdicts finding him guilty of attempted first degree murder after deliberation, two counts of attempted extreme indifference murder, three counts of attempted first degree assault, three counts of reckless endangerment, and illegal discharge of a firearm. Defendant also appeals the sentence imposed by the trial court. We affirm in part, vacate in part, and remand with directions.

The three victims, father, mother, and child, were traveling in a car. The father was driving, the mother was in the passenger seat, and the child was asleep in the back seat. A white car pulled up next to them, and defendant, who was riding in the back seat, said something to the father. When the father rolled down his window, defendant asked him whether he was the person who had stared at him at a grocery store the previous week. Defendant also said, “Yeah, I know your bitch,” referring to the mother. The white car then drove away. The mother testified that she and the father had seen defendant at a grocery store approximately a week earlier.

Later that evening, the white car began to follow the victims’ car. The father saw defendant in the front passenger seat of the white car holding a gun, and then he heard gunshots. Two bullet holes were found in the victims’ car.

Defendant was convicted of the above mentioned charges after a jury trial. The jury also found that the three attempted first degree murder counts and the three assault counts were crimes of violence under § 18-1.3^406, C.R.S.2002. Defendant was sentenced to ■ thirty-eight years in the Department of Corrections for each attempted murder conviction, twelve years for each attempted assault conviction, six months for each reckless endangerment conviction, and six months for the illegal discharge of a firearm conviction. Two of the attempted murder sentences were to be served consecutively, and the remaining sentences were to be served concurrently. This appeal followed.

i.

Defendant contends that the jury was incorrectly instructed on the elements of attempted first degree murder after deliberation and, as a result, he was deprived of his due process right to have the jury determine that every element of that charge was proved beyond a reasonable doubt. We perceive no reversible error.

Where a defendant does not object to the trial court’s jury instructions, we review using a plain error standard. Plain error occurs where the error so undermines the fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction. To require reversal for plain error with respect to jury instructions, the defendant must demonstrate that the instructions affected a substantial right and that a reasonable possibility exists that the error contributed to his conviction. People v. Garcia, 28 P.3d 340 (Colo.2001).

Criminal attempt requires that the accused act with the kind of culpability otherwise required for commission of an offense and engage in conduct constituting a substantial step toward the commission of the offense. Section 18-2-101(1), C.R.S.2002. Where a defendant is charged with attempted first degree murder after deliberation, the “substantial step” element requires proof of the intent to commit first degree murder. First degree murder after deliberation requires that the act in question be committed after deliberation and with the intent to kill the victim. Section 18 — 3—102(l)(a), C.R.S.2002; Gann v. People, 736 P.2d 37 (Colo.1987); People v. Caldwell, 43 P.3d 663 (Colo.App.2001).

An instruction defining attempted first degree murder after deliberation is erroneous if it omits any reference to the requirement that the defendant must have acted after deliberation and with the intent to kill. The preferable practice is to include the mens rea element of an offense in the instruction defining the offense. Gann v. People, supra.

However, “[t]he failure to include the culpable mental state in the instruction defining the offense is not plain error so long as the instructions, read and considered in their entirety, clearly instruct the jury as to the required mens rea.” Gann v. People, supra, 736 P.2d at 39; see People v. Caldtoell, supra.

Here, the jury was instructed that the elements of attempted first degree murder after deliberation are that defendant intentionally engaged in conduct constituting a substantial step toward the commission of murder in the first degree after deliberation. Defendant argues that this instruction is deficient because it omits any reference to the requirement that defendant intended to cause the death of another person after deliberation. However, the jury was separately instructed that first degree murder after deliberation includes the elements that defendant acted with intent to cause the death of another person and after deliberation.

Thus, the instructions taken as a whole clearly instructed the, jury on the requisite elements of attempted first degree murder after deliberation, and any error in the attempt instruction is not plain error. See People v. Caldtuell, supra.

II.

Defendant also contends that the trial court erred in denying his motion for a judgment of acquittal because insufficient evidence was presented to show that he acted with the requisite intent for attempted first degree murder after deliberation. Again, we disagree.

In assessing the sufficiency of the evidence supporting a guilty verdict, a reviewing court must determine whether any rational trier of fact might accept the evidence, taken as a whole and in the light most favorable to the prosecution, as sufficient to support a finding of guilt beyond a reasonable doubt. People v. Sprouse, 983 P.2d 771 (Colo.1999); Kogan v. People, 756 P.2d 945 (Colo.1988).

When ruling on a motion for judgment of acquittal, the trial court must consider both the prosecution and the defense evidence. In performing this function, the court is bound by five well-established principles of law. First, the court must give the prosecution the benefit of every reasonable inference, which might be fairly drawn from the evidence. Second, the determination of the credibility of witnesses is solely within the province of the jury. Third, the trial court may not serve as a thirteenth juror and determine what specific weight should be accorded to various pieces of evidence or by resolving conflicts in the evidence. Fourth, a modicum of relevant evidence will not rationally support a conviction beyond a reasonable doubt. Finally, verdicts in criminal cases may not be based on guessing, speculation, or conjecture.

People v. Sprouse, supra, 983 P.2d at 778 (citations omitted); see Kogan v. People, supra.

Here, defendant argues that insufficient evidence was presented to prove that he specifically intended to cause the father’s death after deliberation because there was little evidence that defendant was the shooter and no credible evidence that he intended to kill the father.

However, there was evidence of a verbal conflict between the father and defendant on the night of the shooting, which conflict was precipitated by an encounter between the father and defendant at a grocery store the previous week. There was also evidence that defendant expressed hostility toward the father after the verbal conflict. Although the driver of the white car recanted her pretrial statements, there was evidence that she told the police that defendant got into the front seat of the car, directed her to pursue the victims’ ear, and fired two shots. Further, the father testified that the white car began to pursue the victims shortly after the verbal conflict and that he saw defendant in the front passenger seat with a gun and then heard gunshots.

Based on this evidence, a rational finder of fact could find the prosecution met its burden of proving beyond a reasonable doubt that defendant specifically intended to kill the father after deliberation.

III.

Defendant contends that the verdicts for attempted extreme indifference murder of the mother and the child and attempted first degree assault of the mother and the child were inconsistent as to each victim. He also contends that the verdicts for attempted first degree murder after deliberation and reckless endangerment of the father were inconsistent. We agree in part.

Generally, consistency among verdicts is unnecessary, but if an element of one crime negates an element of another crime, guilty verdicts on both crimes are legally and logically inconsistent and should not be sustained. People v. Frye, 898 P.2d 559 (Colo.1995); People v. Jones, 990 P.2d 1098 (Colo.App.1999).

A.

We agree with defendant that the attempted extreme indifference murder and attempted first degree assault convictions as to the mother and as to the child are inconsistent.

Attempted first degree assault with a deadly weapon, as charged here, requires that a defendant act intending to cause serious bodily injury to any person by means of a deadly weapon. Sections 18-2-101(1), 18-3-202(1), C.R.S.2002. Attempted first degree assault is a specific intent crime. See § 18-1-501(5), C.R.S.2002.

Attempted extreme indifference murder is a general intent crime that requires that a defendant act with universal malice that is not directed at a particular person. People v. Ellis, 30 P.3d 774 (Colo.App.2001).

In People v. Lee, 914 P.2d 441 (Colo.App.1995), a division of this court noted that while a defendant’s intent may logically vary in committing crimes against separate victims, convictions of specific intent crimes and attempted extreme indifference murder arising out of the same conduct and involving the same victim are logically and legally inconsistent and cannot be sustained. Where a defendant engages in only one assaultive act, he or she cannot simultaneously have a specific intent to harm a particular person and universal malice that is not directed at a particular person.

Here, defendant was convicted of attempted extreme indifference murder and, attempted first degree assault of the mother and of the child. Thus, the two verdicts as to each victim are inconsistent and cannot be sustained. See People v. Lee, supra; People v. Atkins, 844 P.2d 1196 (Colo.App.1992).

Under these circumstances, we are required to maximize the effect of the jury’s verdict, retaining as many convictions and upholding as many sentences as are legally possible. See People v. Lee, supra; People v. Atkins, supra. The sentence for one of the attempted extreme indifference murder counts was consecutive to the sentence for attempted .first degree murder after deliberation and concurrent with all other counts. The sentence on the other attempted extreme indifference murder count was concurrent with all other counts. Thus, we conclude that the two convictions of attempted first degree assault regarding the mother and the child must be vacated to maximize, the effect of the jury’s verdict.

Because defendant’s sentences for attempted first degree assault were to run concurrently with his attempted murder sentences, defendant suffered no prejudice from his sentence for the two now vacated attempted first degree assault convictions involving the mother and the child, and therefore, resentencing is not required. See People v. James, 981 P.2d 637 (Colo.App.1998); People v. Lee, supra.

Defendant argues that fully effectuating the jury’s verdicts “makes no sense ... where, as here, the jury’s verdicts for different crimes are inconsistent.” He argues that People v. Glover, 893 P.2d 1311 (Colo.1995), does not support our conclusion because that case did not involve inconsistent verdicts. Therefore, he argues, we should vacate either both verdicts or the greater offense as to each victim. We reject defendant’s argument for implementing a result different from that in Glover. Further, defendant does not argue that there was insufficient evidence to support his convictions for attempted extreme indifference murder.

In People v. Lee, supra, a division of this court held that verdicts of attempted extreme indifference murder and second degree assault were inconsistent. The division relied upon Glover in holding that the effect of the jury verdicts should be maximized. We perceive no logical or legal reason to refuse to maximize the effect of the jury verdicts where, although inconsistent, sufficient evidence supported both verdicts.

Further, in applying the rule in Glover to decide which of two convictions to retain, a court should effectuate the jury’s verdict by entering as many convictions and imposing as many sentences as are legally possible. People v. Jones, supra. “[A] court should also consider the General Assembly’s felony classification - of the various crimes committed by the defendant, together with the length of sentences, because ‘maximizing’ a jury’s verdict in this context connotes giving effect to the most serious offense.” People v. Jones, supra, 990 P.2d at 1102. Accordingly, we reject defendant’s argument and apply Lee and Jones here.

On remand, the trial court must amend the mittimus to delete the convictions and sentences for attempted first degree assault of the mother and child.

B.

Defendant contends that his conviction for attempted first degree murder after deliberation is inconsistent with his conviction for reckless endangerment of the father. He argues that the intentional mens rea of the attempted murder charge is inconsistent with the reckless mens rea of the endangerment charge. We disagree.

Where recklessness establishes an element of a crime, that element is also established if the defendant acts intentionally. See § 18-1-503(3), C.R.S.2002.

“When any conduct of a defendant establishes the commission of more than one offense, the defendant may be prosecuted for each such offense.” Section 18-1^108(1), C.R.S.2002. However, if an element of one offense negates an element of the other offense, convictions of both offenses are inconsistent. People v. Frye, supra; People v. Jones, supra.

Here, contrary to defendant’s argument, the jury’s finding that he acted intentionally encompasses its finding that he acted recklessly, and thus, the finding of intentional conduct does not negate the reckless mens rea of the endangerment charge.

The analysis of the consistency of these two verdicts differs from the analysis of the consistency of verdicts for attempted extreme indifference murder and attempted first degree assault. Acting with the universal malice required for extreme indifference murder negates the specific intent element in first degree assault. However, acting intentionally and after deliberation, as required for first degree murder, encompasses rather than negates acting with conscious disregard of a substantial risk, the mens rea for reckless endangerment. See §§ 18-1-501(8), 18-3-208, C.R.S.2002.

Accordingly, defendant’s convictions for attempted first degree murder after deliberation and reckless endangerment of the father are not inconsistent.

IV.

Defendant contends that the trial court erred in failing to instruct the jury that attempted first degree assault and illegal discharge of a firearm are lesser included offenses of attempted first degree murder after deliberation. We disagree.

While a defendant may be convicted of multiple offenses arising out of a single transaction, the defendant cannot be convicted of an offense that is a lesser included offense of another charge on which he or she has been convicted. Section 18-1-408(1). A lesser offense is included within a greater offense if proof of the essential elements of the greater offense necessarily establishes all the elements required to prove the lesser offense. People v. Skinner, 53 P.3d 720 (Colo.App.2002); People v. Webster, 987 P.2d 836 (Colo.App.1998).

In determining whether an offense is lesser included, we compare the statutory elements of the offenses in question, not the evidence presented at trial. People v. Leske, 957 P.2d 1030 (Colo.1998).

As pertinent hei-e, attempted first degree assault requires that a defendant act with the intent to cause serious bodily injury to another person by means of a deadly weapon. See §§ 18-2-101(1), 18-3-202(1). Use of a deadly weapon is not an element of attempted first degree murder after deliberation. See §§ 18-2-101(1), 18-3-102(l)(a). Thus, attempted first degree assault is not a lesser included offense of attempted first degree murder, after deliberation. See People v. Skinner, supra (first degree assault is not a lesser included offense of attempted first degree murder); People v. Webster, supra (same).

As pertinent here, “[a]ny person who knowingly or recklessly discharges a firearm ... into any motor vehicle occupied by any person, commits the offense of illegal discharge of a firearm.” Section 18-12-107.5(1), C.R.S.2002. Discharge of a firearm is not an element of attempted first degree murder after deliberation. See §§ 18-2-101(1), 18-3-102(l)(a). Thus, illegal discharge of a firearm is not a lesser included offense of attempted first degree murder after deliberation.

Accordingly, the trial court did not err in instructing the jury.

V.

Defendant next contends that one of his two convictions for attempted extreme indifference murder must be vacated. He argues that because § 18-3-102(l)(d), C.R.S.2002, proscribes conduct that “creates a grave risk of death to a person, or persons ” (emphasis added), conduct that creates such a risk to more than one person constitutes only one offense. Thus, he argues, both the mother and the child should have been included in a single count of attempted extreme indifference murder. We are not persuaded.

Defendant relies on the words “person, or persons” in § 18 — 3—102(l)(d) but cites no other authority to support his interpretation of the statute. Defendant’s interpretation of those words is undercut by People v. Jejfer- son, 748 P.2d 1223 (Colo.1988), where the supreme court concluded that the General Assembly added the words “or persons” with the intent to limit the statute to situations where the actor demonstrated universal malice. Interpreted in this way, the words do not require that all victims of a defendant’s universal malice be joined in a single count.

A division of this court has held that a defendant may be charged with and convicted of multiple counts of attempted extreme indifference murder where his or her conduct endangers several people. See People v. Ellis, supra (information charging defendant with two counts of attempted extreme indifference murder was notmultiplie-itous where defendant fired three shots into a closed door behind which he knew there were people, and defendant injured one victim, but did not hit the other); see also People v. Pee, supra (defendant convicted of three counts of attempted extreme indifference murder where one victim was wounded and two victims were not wounded by defendant’s gunshots into an automobile). We are persuaded by the reasoning of People v. Ellis, supra, and follow it here.

Accordingly, defendant was properly convicted of multiple counts of attempted extreme indifference murder for shooting into a car with multiple passengers.

VI.

Defendant contends that the trial court abused its discretion in admitting evidence of his gang involvement. Again, we disagree.

Evidence of a defendant’s affiliation with a gang may be admitted when it is relevant to prove motive. However, relevant evidence should be excluded if its probative value is substantially outweighed by its prejudicial effect. CRE 403; People v. Webster, supra.

A trial court’s admission of allegedly prejudicial evidence is reviewed for abuse of discretion. To constitute an abuse of discretion, the trial court’s decision must be shown to be manifestly arbitrary, unreasonable, or unfair. In reviewing the trial court’s determination, we must assume the maximum probative value and the minimum prejudicial effect to be expected. People v. Webster, supra.

Here, the trial court admitted limited evidence related to “names and colors and past gang association”, as relevant to the motive for the shooting. The court also found that the prejudicial impact of such evidence did not outweigh its probative value.

At trial, the father testified that he and defendant were associated with rival gangs. He said that he believed the conflict with defendant was attributable to the color of the clothing the father was wearing during the incident and during the encounter at a grocery store the previous week. He believed the color had gang-related significance. Further, evidence was admitted describing gang affiliations of another man in the white car, who defendant argued at trial was the actual shooter.

Under these circumstances, the admission of such evidence was not manifestly arbitrary, unreasonable, or unfair. Accordingly, we perceive no abuse of discretion.

VII.

Finally, defendant contends that the trial court abused its discretion in determining his sentence. He argues that the court imper-missibly relied on facts from another case before the same court in which defendant was acquitted of first and second degree murder. We disagree.

Sentencing is by its nature a discretionary function. Because the trial court is more familiar with the defendant and the circumstances of the case, it is accorded wide latitude in its sentencing decisions. Thus, a trial court’s sentencing decision will not be disturbed absent a clear abuse of discretion. People v. Eurioste, 12 P.3d 847 (Colo.App.2000). Only in truly exceptional situations will an appellate court substitute its judgment for that of the trial court as to an appropriate sentence. People v. Vigil, 718 P.2d 496 (Colo.1986).

In exercising its sentencing discretion, a trial court must consider the nature and elements of the offense; the character and rehabilitative potential of the offender, any-aggravating or mitigating circumstances, and the public interest in safety and deterrence. The court may not place undue emphasis on any one of these factors to the exclusion of the others.

People v. Eurioste, supra, 12 P.3d at 850.

A trial court may consider a wide range of evidence in determining a defendant’s sentence, including facts relating to charges of which the defendant has been acquitted. United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997)(sentencing court may consider conduct underlying an acquitted charge where that conduct has been proved by a preponderance of the evidence); People v. Le, 74 P.3d 431, 2003 WL 297561 (Colo.App. No. 01CA1303, Feb. 13, 2003)(where defendant acquitted of murder, but convicted of other crimes regarding same victim, sentencing court properly considered defendant’s conduct that set events in motion that led to victim’s death); People v. La Plant, 670 P.2d 802 (Colo.App.1983)(sentencing court considered premeditation despite jury’s verdict finding defendant guilty of second degree, rather than first degree, murder).

In determining defendant’s sentence, the court considered the evidence in this case that defendant had been involved in an incident with the victims the week before the shooting, wanted to kill the father, and did not care whether others would be hurt in this “classic drive-by shooting.” The court also considered defendant’s decision to be involved with gangs and to sell drugs, which defendant acknowledged in his statement at the sentencing hearing.

The court stated that it would consider evidence presented in the other case, and it found that defendant in fact had shot the victim in that case. The court explained that this finding was pertinent to sentencing in the present case because it demonstrated that defendant was involved in two shootings within a two-day period, had a propensity to carry guns for the purpose of resolving disputes, had a lack of concern for the safety of others, and posed a risk to society. The court clarified that it accepted the not guilty verdict in the other case and was not sentencing defendant for his conduct surrounding that case or concluding that it constituted a criminal offense. Thus, the court’s findings with respect to the other case merely provided additional information upon which to determine the appropriate sentence in this case.

The court considered the requisite factors in determining defendant’s sentence. See People v. Ewrioste, supra. Further, under these circumstances, the fact that the court considered evidence of defendant’s behavior presented in the other case was not a violation of defendant’s due process rights. See United States v. Watts, supra; People v. Le, supra; People v. La Plant, supra.

To the extent that defendant argues that his sentence is contrary to the Supreme Court’s holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), we note that the sentence is within the range available to the court as a result of the jury’s verdict. Therefore, we reject his argument. See People v. Allen, 43 P.3d 689 (Colo.App.2001).

Accordingly, we conclude that the court did not abuse its discretion in determining defendant’s sentence.

The judgment and sentence are vacated as to the attempted first degree assault of the mother and of the child; the judgment and sentence are affirmed in all other respects; and the case is remanded for correction of the mittimus.

Judge TAUBMAN and Judge CASEBOLT concur.


author: Judge GRAHAM.

text:
    GOLDEN LODGE NO. 13, INDEPENDENT ORDER OF ODD FELLOWS, an unincorporated nonprofit association, Plaintiff-Appellant, v. GRAND LODGE of the INDEPENDENT ORDER OF ODD FELLOWS OF COLORADO, a Colorado nonprofit corporation, Defendant-Appellee.
    No. 02CA0128.
    Colorado Court of Appeals, Div. I.
    March 13, 2003.
    Rehearing Denied April 24, 2003.
    Certiorari Denied Dec. 15, 2003.

      Robinson & Robinson, P.C., William F. Robinson, III, Denver, Colorado, for Plaintiff-Appellant.
    Montgomery, Little & McGrew, P.C., John R. Riley, Englewood, Colorado, for Defendant-Appellee.

       Chief Justice MULLARKEY and Justice HOBBS would grant as to the following issues:
      Whether Golden Lodge No. 13 was deprived of its property in violation of the rules and regulations (the "Codes”) of the Sovereign Grand Lodge and of the Grand Lodge of Colorado when Grand Lodge of Colorado suspended and revoked Golden Lodge's Charter and seized its assets without notice and a hearing.
      Whether Grand Lodge's revocation of Golden Lodge's Charter, without notice and a hearing, in retaliation for Golden Lodge filing a civil suit or in response to a failure to turn over its books and records on demand of the Grand Lodge, violated the terms of the 1987 Stipulation, an Order of the Jefferson County District Court.

   Opinion by

Judge GRAHAM.

In this action concerning the Odd Fellows Hall in Golden, Colorado, plaintiff, Golden Lodge No. 13, Independent Order of Odd Fellows (I.O.O.F.), appeals from the trial court’s judgment quieting title in defendant, Grand Lodge of the I.O.O.F. of Colorado. We affirm.

The I.O.O.F. is an international philanthropic fraternal organization. The I.O.O.F. consists of the Sovereign Grand Lodge, the supreme governing body of the Order; grand lodges, like defendant Grand Lodge of Colorado, which are chartered by the Sovereign Grand Lodge and which preside over and govern local lodges in a particular geographic area; and local lodges, like plaintiff Golden Lodge, which are chartered by their respective grand lodges. A grand lodge ensures that its subordinate local lodges comply with all grand lodge and sovereign lodge laws.

Grand Lodge of Colorado is the supreme governing body of the organization within Colorado. The Grand Master of Grand Lodge is the highest ranking I.O.O.F. official in the state.

Golden Lodge purchased the Odd Fellows Hall in 1920 and subsequently acquired additional real property.

Grand Lodge and Golden Lodge were parties to prior litigation arising from the suspension of Golden Lodge’s charter for noncompliance with I.O.O.F. rules and regulations. Under the parties’ 1987 stipulation, Golden Lodge kept its charter. Golden Lodge also was required to make its financial books and records available to the supervision of Grand Lodge, which it already was obligated to do under the various rules of governance. The stipulation became a trial court order.

Again, in 1992, the Grand Master received notice that Golden Lodge and its members had violated various I.O.O.F. rules and regulations. In January 1993, the Grand Master suspended Golden Lodge’s charter and took over its assets, including Odd Fellows Hall, pending an investigation of the alleged improprieties.

The Grand Master provided Golden Lodge with a list of the charges against it and met with its officers to discuss the charges. At that meeting, Golden Lodge refused to produce its financial records or charter to Grand Lodge. Around this time, Grand Lodge appointed an executive committee to investigate the charges against Golden Lodge.

Golden Lodge then commenced a forcible entry and detainer action against the Grand Master and Grand Lodge, seeking a judgment for possession of Odd Fellows Hall. On Grand Lodge’s motion, the trial court dismissed the case without prejudice. A division of this court dismissed Golden Lodge’s appeal for lack of a final order. Golden Lodge No. 13, I.O.O.F. v. Easley, 916 P.2d 666 (Colo.App.1996).

Meanwhile, Grand Lodge, through its executive committee, revoked Golden Lodge’s charter in March 1993. The Grand Master notified the members of Golden Lodge that its charter had been revoked and that its property reverted to Grand Lodge under the I.O.O.F. rules and regulations.

At Grand Lodge’s annual meeting in October 1993, the members unanimously approved the executive committee’s revocation of Golden Lodge’s charter.

In 1996, a hearing was scheduled to address Golden Lodge’s concerns about the suspension and revocation of its charter. However, when Golden Lodge’s representative was late for the hearing, a default was entered, and Grand Lodge denied Golden Lodge’s request for another hearing.

The Sovereign Grand Lodge subsequently upheld Grand Lodge’s decision to suspend and revoke Golden Lodge’s charter.

Golden Lodge filed another forcible entry and detainer action against Grand Lodge. This time Grand Lodge filed a counterclaim seeking to quiet title to the Odd Fellows Hall under its I.O.O.F. reversionary rights. After a trial on the quiet title action, the trial court found that Grand Lodge had followed proper procedures when suspending and revoking Golden Lodge’s charter, and therefore, title to Odd Fellows Hall reverted to and vested in Grand Lodge. This appeal followed.

Findings of fact are reviewed for clear error or abuse of discretion, whereas conclusions of law generally are reviewed de novo. E-470 Pub. Highway Auth. v. 455 Co., 3 P.3d 18 (Colo.2000). We must accept the trial court’s findings on review unless they are so clearly erroneous as not to find support in the record. Bainbridge, Inc. v. Bd. of County Comm’rs, 53 P.3d 646 (Colo.App.2001).

Here, the trial court’s findings of fact have ample support in the record and are otherwise not in dispute. Therefore, the legal effect of those facts is a question of law. We are not bound by the trial court’s conclusions of law, and our review is de novo. Ocmulgee Props. Inc. v. Jeffery, 53 P.3d 665 (Colo.App.2001).

I. Lodge Governance

Golden Lodge contends that the trial court erred in finding that its refusal to turn over its financial records to Grand Lodge violated the laws of the I.O.O.F. We disagree.

Fraternal organizations make their own laws and regulations, and courts ordinarily enforce them. Grand Lodge A.O.U.W. v. Taylor, 24 Colo.App. 106, 131 P. 783 (1913). Although courts generally refrain from interfering with the internal affairs of voluntary organizations, such, organizations may seek enforcement of their rules: in the civil courts if a dispute involves property rights or is otherwise judicially cognizable. Anderson v. Enter. Lodge No. 2,. 80 Wash.App. 41, 906 P.2d 962 (1995).

Pursuant to the Sovereign Grand Lodge’s Constitution and Code of General Laws (Sovereign Code), each grand lodge has sole, unimpeded jurisdiction over its local lodges. The Sovereign Code also requires a grand lodge to supervise its local lodges and to enforce strict adherence to the work of the I.O.O.F. These provisions implicitly authorize a grand lodge to inspect the financial records of its subordinate lodges to ensure adherence to the I.O.O.F. laws.

The 1987 stipulation required Golden Lodge to “open its lodge records, including, but not limited to, its minutes, checkbook and cancelled checks and correspondence to the Grand Lodge.” The trial court correctly determined that Golden Lodge’s failure to cooperate violated both the court order and the rules of the I.O.O.F.

II. Right of Reversion

Golden Lodge next contends that the trial court erred in ruling that Grand Lodge followed the proper procedures for suspending and revoking its charter, and therefore, the trial court erred in quieting title in Grand Lodge to the Odd Fellows Hall. We disagree.

The rules and regulations for suspending and revoking a local lodge’s charter are promulgated under, the Sovereign Code and the Colorado Grand Lodge’s Constitution and Code of Laws (Colorado Code). These codes expressly provide a grand lodge with a right of reversion.

In the absence of some constitutional infirmity, courts ordinarily should not interfere with the interpretation placed upon the Sovereign and Colorado Codes by its officers and agents unless such interpretation is arbitrary and unreasonable. See Anderson v. Enter. Lodge No. 2, supra.

Here; it is undisputed that when a grand lodge arrests, suspends, or revokes a charter, the assets and records of the local lodge shall be taken by it, and if a local lodge becomes defunct, all real and personal property owned by it shall pass to and vest in the grand lodge.

The controversy here stems from language in the Sovereign and Colorado Codes regarding the procedure for suspending and revoking a local lodge’s charter, which Golden Lodge contends are conflicting. We disagree.

The Sovereign Code states that the charter of a local lodge may be arrested, suspended, or revoked by a grand lodge after notice and a hearing.

However, § 89 of the Colorado Code authorizes the Grand Master to suspend a local lodge that willfully disobeys the laws, regulations, and practices of the I.O.O.F., or whose officers and members willfully act to cause disorder and dissociation between the local lodge and other branches of the I.O.O.F. Contrary to Golden Lodge’s contention, the rales do not require that the Grand Master provide notice and a hearing before suspending a charter. See also Anderson v. Enter. Lodge No. 2, supra (the I.O.O.F. rules do not require notice or a hearing when a grand master revokes a charter).

Here, Golden Lodge was required to “open its lodge records” to the Grand Lodge pursuant to the 1987 order of stipulation and the Sovereign and Colorado Codes. Thus, when Golden Lodge continually refused to allow Grand Lodge to inspect its financial records, the Grand Master had the authority to suspend Golden Lodge and take into custody the charter, property, and accounts of the lodge, without notice or a hearing.

Section 89 of the Colorado Code further provides that the suspension of a lodge shall continue until the next regular meeting of the Grand Lodge, at which time the suspension shall be reviewed by the members of the Committee on Judiciary with recommendations for action by the membership of the Grand Lodge.

Golden Lodge argues that, because the Committee on Judiciary did not review its suspension, the executive committee’s revocation of its charter was improper. We are not persuaded.

Section 81.3 of the Colorado Code provides that, if problems arise between sessions of the Grand Lodge, “the executive committee shall have all power necessary to investigate” them. The Sovereign Code authorizes a grand lodge to create such an executive committee and determine its composition, powers, and authorities. The Sovereign Code directs that grand lodges have sole jurisdiction over local lodges and grants to grand lodges the right to formulate and amend their basic laws.

Here, it was not unreasonable or arbitrary for Grand Lodge to interpret § 81.3 as applicable. Because Golden Lodge’s problems arose before the annual meeting of Grand Lodge, the executive committee had authority under § 81.3 to revoke Golden Lodge’s charter.

Furthermore, under § 89, a grand lodge may expel a local lodge from the I.O.O.F. and take possession of the local lodge’s property on approval of two-thirds of the grand lodge’s voting membership.

At the annual meeting in 1993, Grand Lodge members unanimously voted to uphold the executive committee’s revocation of Golden Lodge’s membership, which is consistent with the § 89 requirement of a two-thirds approval to expel a local lodge from the I.O.O.F.

In light of the sometimes conflicting rules regarding suspending and revoking a local lodge’s charter, Grand Lodge’s interpretation of that procedure was neither arbitrary nor unreasonable. See Anderson v. Enter. Lodge No. 2, supra. Furthermore, the Sovereign Grand Lodge upheld Grand Lodge’s decision to revoke Golden Lodge’s charter, and we defer to the Sovereign Grand Lodge’s construction and interpretation of its own rules and regulations. See Anderson v. Enter. Lodge No. 2, supra.

We therefore agree with the trial court that Grand Lodge followed the proper procedures for suspending and revoking Golden Lodge’s charter and that title to the Odd Fellows Hall vests in Grand Lodge.

III. Due Process

Golden Lodge also argues, without factual basis, that § 89 of the Colorado Code violates due process protections. To the extent a cognizable due process claim could be presented here, we do not reach it.

“It is axiomatic that this court will not consider constitutional issues raised for the first time on appeal.” People v. Cagle, 751 P.2d 614, 619 (Colo.1988); see People v. Boyd, 30 P.3d 819 (Colo.App.2001); see also People v. Lesney, 855 P.2d 1364 (Colo.1993)(rejecting due process and equal protection challenges because they were not presented to trial court).

The judgment is affirmed.

Judge JONES and Judge VOGT concur.


author: Judge STERNBERG.

text:
    Richard F. SAMPSON, Petitioner-Appellee, and Board of Assessment Appeals, Appellee, v. TELLER COUNTY BOARD OF EQUALIZATION, Respondent-Appellant.
    No. 02CA0543.
    Colorado Court of Appeals, Div. A.
    March 27, 2003.
    Rehearing Denied May 29, 2003.
    Certiorari Granted Dec. 15, 2003.
    No Appearance for Petitioner-Appellee.
    Ken Salazar, Attorney General, John D. Baird, First Assistant Attorney General, Denver, Colorado, for Appellee.
    Sparks Willson Borges Brandt & Johnson, P.C., Stephen A. Hess, Colorado Springs, Colorado, for Respondenb-Appellant.

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

   Opinion by

Judge STERNBERG.

In this property tax case, respondent, the Teller County Board of Equalization (BOE), appeals from an order of the Board of Assessment Appeals (BAA) that reduced the valuation placed on certain residential property owned by petitioner, Richard F. Sampson (taxpayer), for the 2001 tax year. We reverse the BAA’s order and remand with directions to dismiss taxpayer’s petition.

The subject property consists of a mobile home used as taxpayer’s residence, along with the residential land on which it is located. As residential property, it must be valued for property tax purposes solely by consideration of the market approach to value. See Colo. Const, art. X, § 20(8)(c); § 39-1-103(5)(a), C.R.S.2002. Under the market approach, or comparable sales method, valuation is determined by analysis of sales of comparable properties in the market. See Bd. of Assessment Appeals v. E.E. Sonnenberg & Sons, Inc., 797 P.2d 27 (Colo.1990).

After the BOE upheld a revaluation of the subject property at $137,919 for the 2001 tax year, taxpayer appealed to the BAA. In the de novo proceedings before the BAA, taxpayer sought to reinstate the $93,951 valuation previously assigned to the property, but taxpayer did not present any comparable sales evidence in support of this valuation. The BOE presented market approach evidence in support of the $137,919 valuation, relying primarily on three comparable sales of other mobile home properties.

Following the hearing, the BAA ultimately found all of the valuation evidence to be unpersuasive, essentially ruling that it was unable to reach an accurate valuation determination from the evidence presented. Under these circumstances, the BAA then reduced the valuation of the subject property to $93,951, as previously set by the assessor before the property was revalued. This appeal by the BOE followed.

I.

We first reject the BOE’s contention that the BAA erred in failing to give effect to a presumption of correctness applicable to the valuation being challenged, as set by the assessor or the BOE.

Contrary to the BOE’s argument, after the 1992 TABOR amendment to the state constitution, there is no longer any presumption of correctness in favor of any previous valuation in the property tax appeals process. See Colo. Const, art. X, § 20(8)(e); § 39-8-108(6), C.R.S.2002; see also Gilpin County Bd. of Equalization v. Russell, 941 P.2d 257 (Colo.1997). But see Arapahoe County Bd. of Equalization v. Podoll, 935 P.2d 14 (Colo.1997). Nevertheless, our standard of review of the BAA’s orders remains unchanged. See § 39-8-108(2), C.R.S.2002; see also § 24-4-106(7), (ll)(e), C.R.S.2002; Bd. of Assessment Appeals v. E.E. Sonnenberg & Sons, Inc., supra.

II.

We agree with the BOE, however, that the BAA erred in failing to place the burden of proof on taxpayer in ruling in taxpayer’s favor under the record here.

By statute, taxpayer was authorized to pursue his challenge to the BOE’s valuation to the BAA for a trial de novo. See § 39-8-108(1), C.R.S.2002. In such de novo eviden-tiary proceedings before the BAA, although the BOE’s previous valuation was no longer presumptively correct, taxpayer nevertheless had the burden of proof. See § 24-4-105(7), C.R.S.2002; BAA Rule 14(a), 8 Code Colo. Regs. 1301-1 (1997).

In particular, we conclude that under the applicable statutory scheme, taxpayer had the burden of proof in the BAA proceedings to establish an appropriate basis under the market approach for his claims for an alternative reduced valuation of the subject property for the 2001 tax year. See §§ 39-l-103(5)(a), 39-8-108(1); Palmer v. Bd. of Equalization, 957 P.2d 348 (Colo.App.1998). Moreover, upon a taxpayer’s failure to sustain its burden of proof in BAA proceedings, the BAA must dismiss the taxpayer’s petition. See 117th Assocs. v. Jefferson County Bd. of Equalization, 811 P.2d 461 (Colo.App.1991).

Here, the BAA noted that taxpayer did not present any comparable sales evidence, and it ultimately discredited all the comparable sales evidence presented by the BOE. The BAA further ruled that it did not receive enough data from the parties to derive any accurate valuation of the property.

Thus, based on the BAA’s findings rejecting all the valuation evidence presented, its ultimate conclusion that the 2001 valuation of the subject property should be reduced to $93,951 is unsupported by any competent evidence. See § 24-4-106(7), (ll)(e); Bd. of Assessment Appeals v. E.E. Sonnenberg & Sons, Inc., supra.

Rather, in ruling in taxpayer’s- favor on this record, the BAA appears to have misplaced the burden of proof. Based on the BAA’s analysis of the evidence presented, we conclude that taxpayer failed, as a matter of law, to meet his burden of proof concerning his valuation claims. Consequently, the dismissal of taxpayer’s petition to the BAA was required under these circumstances'. See 117th Assocs. v. Jefferson County Bd. of Equalization, supra; see also Palmer v. Bd. of Equalization, supra.

Accordingly, the BAA’s order is reversed, and the case is remanded to the BAA with directions to dismiss taxpayer’s petition.

Judge DAVIDSON and Judge METZGER concur.

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