author: Judge CASEBOLT.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kevin PAUL, Defendant-Appellant.
    No. 02CA0199.
    Colorado Court of Appeals, Div. II.
    Aug. 14, 2003.
    Certiorari Granted Feb. 17, 2003.

      Ken Salazar, Attorney General, Monica M. Marquez, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Thomas D. Silverman, P.C., Theodore G. Hess, Glenwood Springs, Colorado, for Defendant-Appellant.
   Opinion by

Judge CASEBOLT.

Defendant, Kevin Paul, appeals the order denying his motion to dismiss the criminal charges against him. He asserts that the Double Jeopardy Clauses of the United States and Colorado Constitutions bar his retrial following the trial court’s declaration of a mistrial. We disagree and therefore affirm.

The prosecution charged defendant with vehicular assault and driving under the influence. In violation of the discovery deadline imposed by the court, defense counsel did not produce an expert’s report until shortly before trial. The prosecution filed a motion to strike, which the trial court initially denied.

During trial, the prosecution renewed its motion to strike when defense counsel called the expert to testify. The trial court then advised the parties that either they could ask for a continuance or request a mistrial. When the parties declined to exercise either option, the trial court declared a mistrial.

A second trial was scheduled to commence five months later. Defendant filed a motion to dismiss the charges, contending that principles of double jeopardy precluded a second trial. The trial court denied the motion, and this appeal followed.

I.

We first address our jurisdiction to determine the issues presented. Defendant contends that we have jurisdiction to hear this appeal because a pretrial order denying a motion to dismiss on double jeopardy grounds is a decision that is immediately appealable. The People assert that the trial court’s determination is not a final judgment. We agree with defendant.

With exceptions not relevant here, an entire case or controversy generally must be resolved by a final judgment before an appeal can be pursued in this court. Section 13-4-102(1), C.R.S.2002; Mission Viejo Col v. Willows Water Dist., 818 P.2d 254 (Colo.1991). Defendant argues, however, that under County Court v. Ruth, 194 Colo. 352, 575 P.2d 1 (1977), and Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), an exception exists for an order that rejects a double jeopardy claim. We agree.

In Abney, the Supreme Court held that a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds fell under the collateral order exception to the final judgment rule. Under that exception, a prejudgment order issued during lower court proceedings may be appealed as a final decision if the order “ ‘conclusively determine[s] the disputed question,’ !resolve[s] an important issue completely separate from the merits of the action,’ and ‘[is] effectively unre-viewable on appeal from a final judgment.’ ” Riehardson-Merrell, Inc. v. Roller, 472 U.S. 424, 431, 105 S.Ct. 2757, 2761, 86 L.Ed.2d 340 (1985)(quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978)). The Court noted that the rights conferred on an accused by the Double Jeopardy Clause would be significantly undermined if appellate review of double jeopardy claims were postponed until after conviction and sentence, because that clause protects an individual against being twice put to trial, not just against double punishment.

In County Court v. Ruth, supra, the supreme court quoted Abney with approval, stating that the considerations noted in Ab-ney made the denial of a motion to dismiss for failure to comply with the criminal join-der statute an appealable decision.

The People assert that Ruth did not involve a pretrial order denying a motion to dismiss on double jeopardy grounds. While that observation is correct, because the Ruth court extensively relied upon Abney, which was a double jeopardy case, we hold that appellate review of an interlocutory order denying a defendant’s motion to dismiss based on a violation of double jeopardy is available here.

Accordingly, we have jurisdiction to address defendant’s claims.

II.

Defendant asserts that a second trial on the same charges would violate his double jeopardy rights because he did not consent to the mistrial and there was no manifest necessity to terminate the trial. We disagree.

When a mistrial is declared without the consent and over the objection of the defendant, double jeopardy principles will bar a second trial unless the mistrial was justified by manifest necessity. People v. Espinoza, 666 P.2d 555 (Colo.1983).

Double jeopardy does not bar a second trial if the defendant consents to a mistrial. Consent may be either express or implied. If a defendant does not timely and explicitly object to a trial court’s sua sponte declaration of mistrial, he or she will be held to have impliedly consented to the mistrial. See United States v. Palmer, 122 F.3d 215 (5th Cir.1997).

Under § 18-l-301(2)(a), C.R.S.2002, a trial is not improperly terminated when the defendant consents to the termination or waives the right to object to the termination, and he or she is deemed to have waived all objections unless an objection is made of record at the time a mistrial is deeláted.

Here, when the trial court considered the prosecution’s request to strike the defense expert during trial, the court offered the option of mistrial or continuance. Defense counsel stated that he was not requesting either alternative. When the court declared a mistrial, defendant did not protest the declaration or otherwise express a desire to proceed. By failing to state an objection, defendant waived any objection and therefore implicitly consented to the mistrial. See § 18 — 1—301(2)(a).

Moreover, even if he did not implicitly consent to the mistrial, we conclude that there was a manifest necessity for the mistrial declaration.

The constitutional standard for determining whether the Double Jeopardy Clause prohibits a retrial of an accused following the declaration of a mistrial was first articulated by the United States Supreme Court in United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824):

We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere.

Appellate review of the propriety of a mistrial declaration under the “manifest necessity” standard “abjures the application of any mechanical formula by which to judge the propriety of declaring a mistrial in the varying and often unique situations arising during the course of a criminal trial.” Illinois v. Somerville, 410 U.S. 458, 462, 93 S.Ct. 1066, 1069, 35 L.Ed.2d 425, 429 (1973). Manifest necessity encompasses those situations, substantial and real, that interfere with or retard the administration of honest, fair, even-handed justice to any of the parties to the proceeding. Brown v. People, 132 Colo. 561, 291 P.2d 680 (1955).

In assessing the propriety of the trial court’s action, we must closely scrutinize the asserted reason for the mistrial against the backdrop of the record to determine whether, in the context of a particular case, the mistrial declaration was substantially justified. See People v. Castro, 657 P.2d 932 (Colo.1983).

Here, the trial court found that defendant and his counsel had acted in bad faith in an attempt to blindside the prosecution by failing timely to provide the defense expert’s report and had also failed to provide foundational material identified in the untimely report.

There is record support for the trial court’s findings, and we perceive no abuse of discretion in its declaration of a mistrial. Under the circumstances, it would have been unjust to the prosecution to proceed with the trial when it was not and could not have been prepared to cross-examine the expert. See § 18-1-301 (2)(b)(III), C.R.S.2002; People v. Hayward, 55 P.3d 803 (Colo.App.2002)(abuse of discretion standard applies in determining whether mistrial was warranted).

And even if, as defendant asserts, a de novo standard of review applies, see People v. Berreth, 13 P.3d 1214 (Colo.2000), we would reach the same conclusion. The facts here demonstrate that proceeding with the trial would have been incompatible with the administration of honest, fair, even-handed justice to the prosecution.

The order is affirmed.

Judge NEY and Judge WEBB concur.


source: Caselaw Access Project

author: Judge CARPARELLI.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Joseph MARTINEZ, Defendant-Appellant.
    No. 02CA0366.
    Colorado Court of Appeals, Div. V.
    Aug. 28, 2003.
    Rehearing Denied Oct. 9, 2003.
    Certiorari Denied Feb. 17, 2004.

      Ken Salazar, Attorney General, Katherine A. Hansen, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Leslie A. Goldstein, Steamboat Springs, Colorado, for Defendant-Appellant.
   Opinion by

Judge CARPARELLI.

Defendant, Joseph Martinez, appeals the judgment of conviction entered upon a jury verdict finding him guilty of soliciting for child prostitution. Defendant also appeals the trial court’s judgment adjudicating him an habitual criminal and the sentence imposed in conjunction with That determination. We affirm.

Defendant was initially charged with soliciting for child prostitution and unlawful sexual contact.

At trial, the fifteen-year-old victim testified that defendant had offered her and a friend money for performing what defendant’s companion described as “sexual favors.” The victim told defendant that she was not interested. According to the victim, she and defendant were left alone in the room' and defendant forcibly touched her breasts and touched his penis to her leg.

The jury acquitted defendant of the sexual contact charge but found him guilty of soliciting for child prostitution.

I.

Defendant first argues that the trial court committed reversible error by admitting, as an excited utterance, the victim’s testimony that a third person entered the room during the sexual assault and remarked, “oh my God.” We disagree,

*

Evidence meeting the criteria of CRE 803(2), the excited utterance exception to the hearsay rule, is admissible even though the declarant is available as a witness. An excited utterance is: “A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” CRE 803(2). The requirements for admissibility under CRE 803(2) are: (1) the event must be sufficiently startling to render normal reflective thought processes of the observer inoperative; (2) the statement must be a spontaneous reaction to the occurrence; and (3) direct or circumstantial evidence must exist to allow the jury to infer that the declarant had the opportunity to observe the startling event. People v. Martinez, 18 P.3d 831 (Colo.App.2000).

The trial court is in the best position to consider the effect of the startling event on the' declarant. And, therefore, that court is afforded wide discretion in determining admissibility under the excited utterance exception. People v. Martinez, supra.

For purposes of analysis, we, like the trial court, accept the parties’ representation that the statement at issue was offered to prove the truth of the matter asserted, that is, that the declarant observed the sexual assault and expressed shock at what was occurring.

The record supports the trial court’s determination that the three requirements for admission of the statement as an excited utterance were satisfied. The victim’s testimony constituted direct evidence that the declarant made the statement as a spontaneous reaction to a startling event which she had the opportunity to view. Contrary to defendant’s contention, it was not necessary to produce the declarant herself to lay the foundation to admit the statement. Therefore, we perceive no abuse of discretion in the trial court’s evidentiary ruling.

B.

Defendant also contends the trial court’s admission of the statement violated “his right to confront adverse witnesses as guaranteed by the U.S. Constitution.” We disagree.

1.

“[W]here proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied.” White v. Illinois, 502 U.S. 346, 356, 112 S.Ct. 736, 743, 116 L.Ed.2d 848, 859 (1992). Excited utterances have the necessary indicia of reliability and constitute a firmly rooted exception to the Confrontation Clause. White v. Illinois, supra; People v. Martinez, supra; People v. Mitchell, 829 P.2d 409 (Colo.App.1991).

Therefore, we conclude that admission of the testimony here did not violate the Sixth Amendment.

2.

To the extent that defendant also contends that admission of the statement violated his confrontation rights under Article II, Section 16 of the Colorado Constitution, we conclude that any error was harmless beyond a reasonable doubt.

The decision of the United States Supreme Court in Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 2538-39, 65 L.Ed.2d 597 (1980), has often been interpreted to require that, under the Sixth Amendment of the federal constitution, the “prosecution must either procure, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.”

“In an effort to maintain consistency between Colorado law and federal law,” the Colorado Supreme Court adopted this requirement in People v. Dement, 661 P.2d 675 (Colo.1983), “to determine whether the admission of hearsay violated a defendant’s right of confrontation secured by Article II, Section 16 of the Colorado Constitution.” Blecha v. People, 962 P.2d 931, 941 (Colo.1998).

However, as we have already noted, more recent decisions of the United States Supreme Court have held that the Sixth Amendment does not require a showing of unavailability when there are “sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule.” See White v. Illinois, supra, 502 U.S. at 356, 112 S.Ct. at 743, 116 L.Ed.2d at 859; Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990); United States v. Inadi, 475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986). Nonetheless, the Colorado Supreme Court has never expressly disavowed the requirement that unavailability be demonstrated. Blecha v. People, supra.

Here, the prosecution did not demonstrate that the declarant was unavailable. Thus, one step of the Dement test is not satisfied and, therefore, admission of the statement violated Article II, Section 16 of the Colorado Constitution.

3.

However, an error in the admission of evidence, even if of constitutional dimension, does not require reversal of a criminal conviction if the error was harmless beyond a reasonable doubt. People v. Harris, 43 P.3d 221 (Colo.2002); People v. Smith, 77 P.3d 751 (Colo.App.2003).

When assessing whether denial of the right to confrontation constituted harmless error, a reviewing court must consider whether, assuming that the damaging potential of the statement was fully realized, the reviewing court nonetheless can say that the error was harmless beyond a reasonable doubt. We should examine a number of factors, including the importance of the de-clarant’s statement to the prosecution’s case, the statement’s cumulative nature, the presence or absence of corroborating or contradictory evidence on the material points of the witness’s testimony, the extent of the cross-examination otherwise permitted, and the overall strength of the prosecution’s case. The ultimate question we must decide is whether the guilty verdict rendered in this trial was surely not attributable to the error. People v. Harris, supra.

Here, the declarant’s statement related to the sexual assault charge of which defendant was acquitted. Even if we were persuaded by defendant’s suggestion that admission of the declarant’s statement could have bolstered the credibility of the victim’s testimony as a whole, we would nevertheless conclude that the error was inconsequential because the victim’s testimony about the solicitation for prostitution was corroborated by her friend who was also propositioned. Under these circumstances, the admission of the out-of-court statement was harmless beyond a reasonable doubt.

II.

Defendant next argues that the trial court abused its discretion when it allowed the victim to testify about the lasting psychological effects of the assault. We disagree.

Evidence is relevant if it has a tendency to render a fact of consequence more or less probable than it would be without such evidence. CRE 401. Relevant evidence, however, may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice to the defendant. CRE 403.

Trial courts have considerable discretion concerning the admissibility of evidence and the determination of its relevancy, probative value, and prejudicial effect. To constitute an abuse of discretion, the trial court’s evidentiary ruling must be shown to be manifestly arbitrary, unreasonable, or unfair. People v. White, 55 P.3d 220 (Colo.App.2002).

Here, the victim testified that she had experienced insomnia, nightmares, and depression since the alleged assault. Defendant objected to this testimony as irrelevant and unfairly prejudicial.

Like the out-of-court statement discussed in the previous section, this statement related primarily to the charge of which defendant was acquitted. To the extent that the testimony had any prejudicial effect with respect to the charge of which defendant was convicted, the record supports the trial court’s determination that that prejudice did not substantially outweigh the probative value of the evidence. Accordingly, we perceive no abuse of discretion in the trial court’s ruling.

III.

Defendant next contends there is insufficient evidence in the record to support the trial court’s judgment finding him guilty of the habitual criminal counts. Specifically, he argues that the prosecution failed to prove he was the person who sustained the four prior convictions at issue. We disagree.

Defendant was charged as a habitual criminal under the following section:

Every person convicted in this state of any felony, who has been three times previously convicted, upon charges separately . brought and tried, and arising out of separate and distinct criminal episodes, either in this state or elsewhere, of a felony .,. shall be adjudged an habitual criminal and shall be punished for the felony offense of which such person is convicted by imprisonment in a correctional facility for a term of four times the maximum of the presumptive range pursuant to section 18-1.3-401 for the class of felony of which such person is convicted.

Section 18-1.3-801(2), C.R.S.2002.

In a habitual criminal action, the prosecution bears the burden of proving beyond a reasonable doubt that the accused is the person named in the prior convictions. Section 18 — 1.3—803(5)(b), C.R.S.2002; People v. Mascarenas, 666 P.2d 101 (Colo.1983).

Section 18-1.3-802, C.R.S.2002, governs the admission of evidence in habitual criminal proceedings. It provides that a duly authenticated copy of the record of a former conviction and judgment is prima facie evidence of the conviction and may be used as evidence at the habitual offender sentencing. However, this section does not establish the exclusive method for proving prior convictions. The prosecution may also carry its burden of proof by using certified copies of public records or documents which are admissible as public records under CRE 901(b)(7) or self-authenticating documents under CRE 902(1) and (4). See People v. Bielecki, 964 P.2d 598 (Colo.App.1998).

Here, the habitual criminal counts in the information were based on allegations that defendant had been separately convicted of violation of bail bond conditions, aggravated incest, engaging in a riot with a deadly weapon, and felony menacing. Daring the habitual phase of the trial, the prosecution introduced certified court records of all four convictions.

The prosecution also introduced a certified copy of a record from the Department of Corrections (DOC), which included a photograph of defendant, a set of his fingerprints, and the mittimuses for the convictions for violation of bail bond conditions and aggravated incest. An investigator with the prosecutor’s office who was personally familiar with the bail bond charge testified that defendant was the person who had been convicted. The victim of the aggravated incest case testified similarly with respect to that proceeding.

In addition, the prosecution introduced a booking sheet and a fingerprint card, which, according to the testimony of the detention facility employee who had fingerprinted defendant, were generated when defendant was charged in the felony menacing case. The date of offense on the booking sheet was the same as that appearing on the certified court records for defendant’s menacing conviction.

The prosecution introduced a booking sheet with fingerprints that were taken when a person with the same name and date of birth as defendant was charged with inciting a riot.

The investigator with the prosecutor’s office, who was personally familiar with the rioting charge, testified that defendant was the person who had been convicted.

The detention facility employee testified that he fingerprinted defendant when defendant was charged with solicitation for child prostitution in this case. The prosecution introduced defendant’s fingerprint card into evidence, and an expert witness testified that the fingerprints on it were taken from the same person whose fingerprints appeared on the DOC records and the booking sheets for the menacing and rioting cases.

We conclude this evidence was sufficient to establish a chain of identity proving beyond a reasonable doubt that defendant was the person convicted in all four of the prior cases on which the habitual criminal counts were based. See People v. Mascarenas, supra.

IV.

Defendant further asserts that a forty-eight-year sentence is unconstitutionally disproportionate to his offense. We disagree.

“[A]n abbreviated proportionality review consists of a comparison of two sub-parts, the gravity of the offense and the harshness of the penalty, to discern whether an inference of gross disproportionality is raised.” People v. Deroulet, 48 P.3d 520, 527 (Colo.2002).

A court determines whether a crime is grave or serious “by considering the harm caused or threatened to the victim or to society and the culpability of the offender.” People v. Deroulet, supra, 48 P.3d at 524.

In almost every case, “the abbreviated proportionality review will result in a finding that the sentence is constitutionally proportionate, thereby preserving the primacy of the General Assembly in crafting sentencing schemes.” People v. Deroulet, supra, 48 P.3d at 526.

Only if an inference of gross dispro-portionality is raised must the “abbreviated” proportionality review be followed by an “extended” proportionality review involving a comparison of defendant’s sentence with those of other similar offenders. People v. Deroulet, supra, 48 P.3d at 526-27.

“[N]o remand is necessary in cases where an extended proportionality review is unnecessary; in such cases an appellate court may conduct an abbreviated proportionality review.” People v. Deroulet, supra, 48 P.3d at 524.

Solicitation for child prostitution is a serious offense because it poses a great risk of harm to the victim. See People v. Strean, 74 P.3d 387 (Colo.App.2002)(sexual assault on a child and sexual assault on a child by one in a position of trust are grave and serious offenses). For similar reasons, aggravated incest is also a serious offense. Cf. People v. Schwartz, 890 P.2d 82 (Colo.1995)(concluding that aggravated incest is a serious crime under C.R.C.P. 241.16(e)(1)).

Defendant’s conviction of felony menacing is a conviction of a serious offense. See Close v. People, 48 P.3d 528 (Colo.2002)(felony menacing is a grave or serious crime for purposes of proportionality analysis). And the felony offense of engaging in a riot, which by definition involves the use of a deadly weapon, § 18-9-104, C.R.S. 2002, is sufficiently akin to felony menacing that we conclude it also constitutes a serious offense for proportionality purposes.

Although violation of bail bond conditions is not a particularly grave or serious offense, it is the only one of defendant’s five convictions about which this can be said. See People v. Cisneros, 855 P.2d 822 (Colo.1993)(a life sentence was not disproportionate where one of the defendant’s prior felony convictions was for violation of bail bond conditions and other convictions were for serious offenses).

Viewing defendant’s triggering and predicate convictions together, we conclude they are serious and do not give rise to an inference that a forty-eight-year sentence with the possibility of parole is grossly disproportionate.

V.

Finally, defendant contends that he was denied his right to allocution prior to sentencing because the court did not explicitly afford him the opportunity to make a statement on his own behalf as required by § 16-11-102(5), C.R.S.2002, and Crim. P. 32(b). We conclude that the error was harmless.

“[B]efore imposing sentence, the court shall afford the defendant an opportunity to make a statement in his or her own behalf and to present any information in mitigation of punishment.” Section 16-11-102(5).

To afford a defendant the opportunity to make a statement on his or her behalf, the trial court must address the defendant in a manner that leaves no doubt that the defendant is personally invited to speak before sentencing. See People v. Marquantte, 923 P.2d 180 (Colo.App.1995).

However, the right of allocution is a statutory right, not a constitutional one, and reversal is not required if the error is harmless. Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). Therefore, we must determine whether the error was harmless. See United States v. Mejia, 953 F.2d 461 (9th Cir.1991); State v. Lindsey, 203 Wis.2d 423, 554 N.W.2d 215 (Wis.Ct.App.1996).

The People concede the trial court erred when it did not afford defendant an opportunity to exercise his statutory right to make a statement in allocution. However, they assert that the error was harmless because defendant received the minimum sentence required by law. We agree.

The trial court imposed the minimum sentence permitted. Because the trial court did not have discretion to impose a lesser sentence, the lack of a statement in allocation did not affect the sentence. Cf. People v. Renfrow, 199 Colo. 101, 605 P.2d 915 (1980)(vacating sentence and remanding for resentencing where trial court did not afford opportunity for allocution and court had discretion to impose lesser sentence). Therefore, we conclude as a matter of law that the trial court’s error was harmless.

The judgment and sentence are affirmed.

Judge ROTHENBERG and Judge VOGT occur.


author: Judge KAPELKE.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Connell Jane WATKINS, Defendant-Appellant.
    No. 01CA1313.
    Colorado Court of Appeals, Div. I.
    Aug. 28, 2003.
    Certiorari Denied Jan. 26, 2004.

      Ken Salazar, Attorney General, Catherine P. Adkisson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder, Colorado; Craig L. Truman, P.C., Craig L. Truman, Denver, Colorado; Burke & Neuwirth,, P.C., Dean Neuwirth, Denver, Colorado, for Defendant-Appellant.
    Linda A. Rosa, Pro Se Amicus Curiae.
    Larry W. Sarner, Pro Se Amicus Curiae.
    Jean Mercer, Ph.D., Pro Se Amicus Curiae.
   Opinion by

Judge KAPELKE.

Defendant, Connell Jane Watkins, appeals the judgment of conviction entered upon a jury verdict finding her guilty of reckless child abuse resulting in death. ■ She also appeals the sentence imposed. We affirm.

This case arises from the-death of a ten-year-old girl while undergoing a “rebirthing” therapy session at the clinic of defendant, a psychotherapist. According to evidence at trial, the child had severe emotional and mental problems and had been in six foster homes by the age of five. She was adopted when she was seven.

Following the adoption, the child’s emotional and behavioral problems became increasingly severe. The adoptive mother consulted various mental health professionals, and she and her daughter entered into weekly therapy sessions with a social worker. None of the courses of treatment or therapy proved successful, and, according to the mother, the child remained defiant and negative at home. The mother later attended two workshops on reactive attachment disorder and came to believe that the symptoms of that disorder matched those of her child.

Later, the child’s mother attended a conference that addressed reactive attachment disorder. At the conference, she was referred by a psychologist to two other psychologists who practiced in North Carolina, not far from where the mother and her daughter lived. Thereafter, the child began weekly therapy for attachment disorder.

The therapy sessions included a “provocative” treatment known as “holding therapy.” During the sessions, the psychologists would sit next to each other on a couch and lay the child across their laps, with one of the child’s arms being behind the therapist nearest her head. The goal was to “activate” repressed emotions within the child and have her vent her anger over such issues as her abandonment, separation from her brother and sister, and adoption.

The mother testified that during the sessions the child would attempt to sit up and hit the- therapists or spit at them. She also stated, however, that the child seemed more relaxed and easier to deal with after the sessions.

In February 2000, the child’s mother met with the mothers of three other children who had participated with defendant in intensive therapy for attachment disorder. They praised defendant and her program. Thereafter, the child’s mother enrolled the child in a two-week intensive session with defendant. During that time, the child and her mother participated in intense and often confrontational therapy with defendant and her associates. The therapy sessions were recorded on videotape.

Among other treatments, defendant conducted daily sessions of holding therapy with the child. According to the mother, the holding therapy performed by defendant and her associates was similar to that which the child had received previously, but defendant was louder and more confrontational. She bounced the child on her lap, held her face to maintain eye contact, and restrained her more securely.

In the second week, defendant and her associates conducted rebirthing therapy, which has been described as a “symbolic rebirth.” They had the child lie in a fetal position on the floor and wrapped her in a flannel sheet. One of defendant’s associates held the ends of the sheet twisted together above the child’s head. The child was then surrounded by and covered with large pillows. Four adults, whose combined weight was over six hundred pounds, then pushed against the pillows to simulate labor contractions. The child was to push herself through the sheet above her head where the corners were twisted together and thus be “reborn” to her adoptive mother, who sat near the opening.

The rebirthing therapy session lasted for over an hour. During that time, the child repeatedly said that she could not breathe, that she needed air, that she was going to throw up, and that she was being squashed. She asked for help several times and also asked for directions about what she was supposed to do. Believing that the child was being manipulative, however, defendant and her associates ignored the pleas and continued with the procedure.

The child eventually stopped moving or speaking. Defendant and her associates thought she was asleep. When they removed the blanket, however, they discovered that she was no longer breathing. She was then taken to a hospital, where she was declared brain dead. The cause of death was determined to be suffocation.

Defendant was charged with and convicted of reckless child abuse resulting in death, § 18-6-401(l)(a) and (7)(a)(I), C.R.S.2002, and other offenses not relevant here. She was sentenced to a mandatory minimum term of sixteen years and to concurrent lesser terms on the remaining counts. In this appeal, she challenges only her conviction of reckless child abuse resulting in death.

I. Exclusion of Proffered Defense Testimony

Defendant contends that the trial court erred in precluding her from presenting evidence that her therapy for children with attachment disorder was effective. We disagree.

All relevant evidence is admissible, unless otherwise provided by constitution, statute, or rule. CRE 402; People v. Rath, 44 P.3d 1033 (Colo.2002). Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” CRE 401.

Relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” CRE 403.

Trial courts have broad discretion in balancing the probative value of the evidence against the danger of unfair prejudice and the other considerations recognized in CRE 403. People v. Ibarra, 849 P.2d 33 (Colo.1993). A trial court’s decision to exclude evidence under CRE 403 will not be disturbed on review in the absence of an abuse of that discretion. People v. Gibbens, 905 P.2d 604 (Colo.1995); King v. People, 785 P.2d 596 (Colo.1990). A reviewing court may properly conclude that such an abuse of discretion has occurred “if, based on the particular circumstances confronting the court, the court’s evidentiary ruling was manifestly arbitrary, unreasonable, or unfair.” King v. People, supra, 785 P.2d at 603.

Defendant endorsed witnesses and provided offers of proof indicating that they would testify that their children had had symptoms similar to those of the child here and that defendant’s attachment therapy had produced positive results. The prosecution filed a motion in limine to exclude certain aspects of the proffered testimony, arguing that it would constitute inadmissible character evidence and also that it would distract the jury from the relevant inquiry. The court deferred ruling on the motion until after the presentation of the prosecution’s case-in-chief.

At trial, the prosecution played for the jury the videotapes of the child’s therapy sessions with defendant and her associates, and a detective provided a contemporaneous narration describing what was being shown on the videotapes. The testimony placed emphasis on the child’s pleas for help during both the holding therapy and rebirthing therapy sessions.

Following the detective’s testimony, the prosecution called three expert witnesses who opined that the holding therapy as depicted on the videotapes was inappropriate. In describing the therapy, they used such terms as “brainwashing,” “cruel,” “shocking,” and “torture,” and one of the witnesses characterized holding therapy as a “pseudo treatment” done by “the fringe elements in the mental health profession.”

At the close of the prosecution’s ease-in-chief, the trial court held a hearing on the prosecution’s motion to exclude defense witness testimony.

Defense counsel argued that the proffered testimony as to the effectiveness of the therapy was admissible to rebut the testimony of the prosecution’s witnesses and also as evidence of habit or routine practice permitted under ORE 406. Counsel further argued that the evidence was admissible because the offense of reckless child abuse resulting in death requires proof of a subjective awareness of a substantial and unjustifiable risk of death from defendant’s conduct, and the jury should be able to draw inferences from defendant’s prior successful experiences in determining whether she was aware of the risk.

The prosecution stated that it had no objection to testimony about defendant’s safety practices during any treatment sessions or to testimony as to what had happened at previous rebirthing sessions. However, it objected to testimony concerning the specific details about other clients of defendant, personal opinions about defendant’s effectiveness or skillfulness as a therapist, and opinions as to the effectiveness of holding therapy.

The court ruled that the testimony constituted evidence of specific instances of conduct, which was thus not admissible to show character. It also rejected defendant’s argument that the testimony was admissible to show habit. In addition, the court found that the evidence was irrelevant and might lead to confusion on the part of the jury by opening the door for cross-examination of the witnesses regarding such irrelevant issues as the condition and treatment of their children at different times and locations.

The court limited its ruling, however, to exclude only testimony concerning holding therapy. The court stated that it would allow the witnesses to testily regarding prior rebirthing sessions, the general nature of their children’s psychiatric problems, whether and when they sought treatment from defendant, and whether they had attended one of defendant’s intensive therapy sessions. They were also allowed to state their general opinion “as to whether [defendant] had a character for being safe in the treatment of her children.”

As defendant acknowledged in her opening brief on appeal, she was allowed-to present testimony about other instances of rebirth-ing, opinion testimony about whether holding therapy was safe, testimony of another social worker who performs holding therapy about her experiences with it, and opinion testimony of an expert, who opined that holding therapy is effective.

In addition, the court allowed testimony by the child’s mother that the parents of other children treated by defendant had praised the efficacy of her therapy. Defendant herself testified about the effectiveness or sue-cess of her prior holding and rebirthing therapy with other children.

A. Relevance

The determinative issues at trial were whether defendant acted recklessly in performing the fatal rebirthing session and whether the child’s death resulted from such recklessness. To sustain its burden of proving that defendant acted recklessly, the prosecution had to establish that she had a subjective awareness of a substantial and unjustifiable risk of death as a result of her conduct. The trier of fact could have inferred defendant’s awareness or lack of awareness of the risk from circumstances such as defendant’s prior experiences with rebirthing therapy. See People v. Hall, 999 P.2d 207 (Colo.2000).

Thus, evidence of prior therapy sessions with other patients would be relevant if it assisted the jury in determining what defendant knew about the risks at the time of the child’s rebirthing therapy session. This evidence could include accounts of events that transpired during prior rebirthing sessions and of defendant’s prior experiences with children’s complaints during therapy sessions.

The court allowed testimony of witnesses about the safety and effectiveness of rebirth-ing therapy, which was the procedure during which the child died. Further, the court allowed testimony concerning the safety aspects of defendant’s prior treatment of the witnesses’ children. It was only the proffered testimony concerning of the effectiveness of the holding therapy that the court excluded. We agree with the trial court that the effectiveness of that type of therapy on prior occasions was not relevant to the issue whether defendant acted recklessly in conducting the rebirthing therapy at issue here. Nor was defendant’s knowledge that her pri- or holding therapy experience with other clients had been effective relevant to show her state of mind as to the safety and efficacy of the rebirthing procedure that led to the child’s death.

B. CRE 403

Even if the evidence were deemed to have some minimal relevance, the trial court properly excluded it under CRE 403. The court determined that the excluded testimony could confuse the issues, mislead the jury, and open the door to cross-examination concerning such collateral issues as the specific disorders or symptoms of other children treated by defendant and the nature and details of their courses of treatment.

A court may exclude relevant evidence that might confuse the issues or mislead the jury “because it might raise a side issue that would distract the jury from the important issues.” Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 403.05[1], at 403-52.6 (2d ed.2003); see also People v. Walker, 666 P.2d 113, 122 (Colo.1983)(upholding trial court’s limiting of cross-examination by defendant under CRE 403 and noting, “The ruling of the trial court properly prevented the sideshow from taking over the circus.”); People v. Flowers, 644 P.2d 916, 919 (Colo.1982)(upholding exclusion of defendant’s evidence of nine other sexual assaults which was proffered to show that someone else had committed the charged offense, and agreeing with the prosecution that such testimony would tend to confuse the issues and unduly delay the trial).

Here, the proffered testimony regarding the effectiveness of defendant’s holding therapy with other clients could have led to mini-trials concerning the medical conditions and courses of treatment of each of those children. The trial court acted well within its discretion in concluding that such evidence could distract the jury from its mission of deciding the critical issues of whether defendant’s actions in the rebirthing therapy were reckless and whether they caused the child’s death.

The fact that the witnesses would have testified that their children had also cried out and sought help during therapy does not alter our conclusion. Such testimony would have been essentially cumulative of other testimony permitted by the court. The court allowed the child’s mother to testify that the child had made similar statements and complaints during her previous holding therapy with others, and defendant herself testified that it was common for children to cry out and claim they were unable to breathe during holding therapy and rebirthing therapy •sessions.

Under these circumstances, we conclude that the court did not abuse its discretion in excluding the proffered evidence under CRE 403.

C. Due Process

While a defendant has a due process right to present evidence in his or her defense, the right is not absolute, and the trial court must exercise its authority to accommodate all legitimate interests in the criminal trial process. People v. Collie, 995 P.2d 765 (Colo.App.1999)(eiting Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973)); see also People v. Pronovost, 773 P.2d 555, 558-59 n. 4 (Colo.1989).

Here, the trial court granted defendant wide latitude to present evidence regarding the safety and effectiveness of the rebirthing therapy, and defendant, the child’s mother, and an expert witness were all allowed to testify as to both the safety and the effectiveness of holding therapy. .

As discussed, the court also allowed testimony concerning defendant’s experience with children’s complaints and outcries during therapy. Further, a psychologist involved in prior rebirthings was permitted to testify that she had ignored children’s claims that they could not breathe during rebirthing therapy because she knew such responses were often a result of the children’s emotional conditions and also because she knew they were in fact able to breathe. In addition, the child’s mother testified that during the holding therapy her daughter had screamed, struggled, and cried out that she was unable to breathe.

Defendant was thus able to argue that, under the circumstances, her own response to the child’s outcries during the rebirthing therapy was not reckless.

Accordingly, we reject defendant’s contention that the trial court’s ruling violated her due process right to present a defense.

II. Equal Protection

Defendant next contends that her mandatory minimum- sentence of sixteen years for reckless child abuse resulting in death violates her right to equal protection of the law under the circumstances here.' Specifically, she- argues that § 18-1.3-406(l)(a), C.R.S. 2002 (previously codified at § 16 — 11— 309(l)(a)), “allows mandatory sentences for crimes of violence to be reduced below the mandatory minimum level, but-that provision is not available to [defendant] because reckless child abuse resulting in death under section 18-6-401 is not defined as a crime of violence under section [18-1.3-406].”

Because defendant did not raise this constitutional claim in the triai court, we decline to address it here. See People v. Cagle, 751 P.2d 614, 619 (Colo.1988)(“It is axiomatic that this court will not consider constitutional issues raised for the first time on appeal”) See alsd People v. Lesney, 855 P.2d 1364, 1366 (Colo.1993)(rejecting equal protection and due process claims as not raised in trial court); People v. Balkey, 53 P.3d 788, 793-94 (Colo.App.2002)(declimng to address contention that reckless homicide statute' is unconstitutional because it proscribes same conduct as misdemeanor offense of careless driving resulting in death, where issue not raised in trial court).

Defendant argues, however, that her equal protection argument may be raised for the first time on appeal because it challenges the legality of the sentence and is therefore jurisdictional. We reject the contention.

In asserting this argument, defendant relies on People v. Hinchman, 196 Colo. 526, 589 P.2d 917 (1978), and its progeny. In Hinchman, the supreme court held that the trial court lacked jurisdiction to suspend a portion of the defendant’s sentence where the effect of the suspension was to reduce the sentence below the statutory minimum. Because it was jurisdictional in nature, the court held, the issue of the legality of the sentence could be raised at any time.

The principle enunciated in Hinchman has since been applied in several reported opinions. Generally, however, the illegality of sentence argument has been deemed jurisdictional only where it implicated the constitutional or statutory authority of the trial court to impose the sentence. See, e.g., People v. Torkelson, 971 P.2d 660, 661 (Colo.App.1998)(allowing defendant to contend for first time on appeal that sentence was illegal because it was imposed by county judge lacking lawful authority); People v. Anaya, 894 P.2d 28, 31 (Colo.App.1994)(“A sentence that is beyond the statutory authority of the court is illegal. When a court imposes a sentence that is illegal, such as one that is in excess of its jurisdiction, the People may raise the issue for the first time on appeal.”); People v. Perkins, 676 P.2d 711, 713 (Colo.App.1983)(“The courts have no jurisdiction to sentence inconsistently with a minimum and maximum term specified by statute.”); see also People v. Green, 36 P.3d 126, 126 (Colo.App.2001)(“Generally, an illegal sentence is one that is inconsistent with the terms specified by statutes.”).

Here, unlike in Hinchman and the other cited cases, the trial court possessed both the jurisdiction to act and the statutory authority to impose the sentence, which was within the statutory range. Under these circumstances, defendant’s equal protection argument is not jurisdictional, and, because she did not raise it in the trial court, we will not address it here. See People v. Cagle, supra.

The judgment and sentence are affirmed.

Judge TAUBMAN and Judge LOEB concur.


author: Chief Judge DAVIDSON.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James D. STANSBERRY, Defendant-Appellant.
    No. 02CA0102.
    Colorado Court of Appeals, Div. IV.
    Sept. 11, 2003.
    Certiorari Denied Feb. 17, 2004.

      Ken Salazar, Attorney General, Melissa D. Allen, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Pamela A. Dayton, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

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

   Opinion by

Chief Judge DAVIDSON.

Defendant, James D. Stansberry, appeals from the judgment of conviction entered after a bench trial in which he was found guilty of forgery. Defendant’s sole claim on appeal is that his right to equal protection was violated because he was not prosecuted for the less serious offense of displaying an altered motor vehicle registration number plate. We affirm.

At trial, the parties stipulated that defendant altered the expiration date of a temporary registration plate that had been issued to a car owned by another person. Defendant also displayed the altered temporary plate in the rear window of his own car.

Defendant was convicted of violating the following section:

A person commits forgery, if, with intent to defraud, such person falsely makes, completes, alters, or utters a written instrument which is or purports to be, or which is calculated to become or to represent if completed ... [a] written instrument officially issued or created by a public office, public servant, or government agency.

Section 18 — 5—102(l)(e), C.R.S.2002. Forgery is a class five felony. Section 18-5-102(2), C.R.S.2002.

Section 42 — 3—133(l)(b), C.R.S.2002, the statute under which defendant contends he should have been prosecuted, provides as follows:

It is unlawful for any person to ... display or cause or permit to be displayed, to have in possession, or to offer for sale any certificate of title, validation tab or sticker, or registration number plate knowing the same to be fictitious or to have been stolen, cancelled, revoked, suspended, or altered.

The statute further provides that a violation of this section is a class two misdemeanor traffic offense. Section 42-3-133(2)(b), C.R.S.2002.

Enactment by the General Assembly of a specific criminal statute does not preclude prosecution under a general criminal statute unless a legislative intent to limit prosecution to the specific statute is shown. People v. Bagby, 734 P.2d 1059 (Colo.1987); People v. Tow, 992 P.2d 665, 667 (Colo.App.1999).

To determine whether by enacting a specific statute the General Assembly intended to preclude prosecution under a general statute, we focus upon: (1) whether the specific statute invokes the full extent of the state’s police powers; (2) whether the specific statute is part of an act creating a comprehensive and thorough regulatory scheme to control all aspects of a substantive area; and (3)whether the act carefully defines different types of offenses in detail. People v. Bagby, supra; People v. Tow, supra.

In People v. Bagby, supra, the defendant was charged with the general felony offense of offering a false instrument for recording after he falsely filled out a liquor license application. The same conduct was more specifically proscribed by various sections and implementing regulations of the Colorado Liquor Code, which provided that such violations were to be punished as misdemeanors. The supreme court held that the defendant could only be prosecuted for the violation of the Liquor Code, reasoning that the broad language and detailed structure of the Liquor Code indicated a thorough legislative consideration of all aspects of the licensing process, including the fashioning of appropriate sanctions. The court noted that the provisions of the Liquor Code carefully defined different types of offenses with references to specific provisions of the Colorado Criminal Code, indicating an intent to fully delineate in the Liquor Code itself the types of punishment available for violations of its provisions. People v. Bagby, supra, 734 P.2d at 1062.

Here, the legislative declaration preceding § 42 — 3—133(1)(b) provides as follows:

(1) The general assembly declares that its purpose in enacting this article and amendments thereto is to implement by law the purpose and intent of section 6 of article X of the state constitution, as adopted in the general election held on November 8,1966, and amended in the general election held November 2, 1976, wherein it is provided, among other things, that “The general assembly shall enact laws classifying motor vehicles and also wheeled trailers, semitrailers, trailer coaches, and mobile and self-propelled construction equipment, prescribing methods of determining the taxable value of such property, and requiring payment of a graduated annual specific ownership tax thereon, which tax shall be in lieu of all ad valorem taxes upon such property.”
(2) It further declares that it intends to classify in this article the personal property so specified, to prescribe methods by which the taxable value of such classified property shall be determined, to require payment of a graduated annual specific ownership tax upon each item of such classified personal property, and to provide for the administration and collection of such tax and for the apportionment and distribution of the revenue derived therefrom.

Section 42-3-101, C.R.S.2002.

Unlike the Liquor Code analyzed in Bagby, this legislative declaration does not contain a broad invocation of police powers. Rather, this legislative declaration makes it clear that the primary purpose of Article 3 of Title 42 is the assessment and collection of motor vehicle taxes. See People. v. Tow, supra, 992 P.2d at 668 (distinguishing Bagby and concluding that the legislative declaration of the Uniform Safety Code, within which the prohibition against careless driving resulting in death was placed, did not invoke the full extent of the state’s police powers because it reflected the narrow purpose of alleviating conflicts and achieving uniformity among traffic laws).

With respect to the second and third Bagby factors, we conclude that § 42-3-133(l)(b) is part of an act creating a comprehensive and thorough regulatory scheme which contains carefully defined criminal offenses relating to the evasion of motor vehicle taxes. However, we are not persuaded that Article 3 was intended to control all aspects of that substantive area 'because it does not contain a complete and exclusive list of offenses and sanctions flowing from acts committed in the course of unlawfully evading motor vehicle taxes.

The limited scope of Article 3 of Title 42 is best illustrated by an examination of defendant’s conduct as it relates to § 42-3-133(l)(b). Defendant committed two distinct criminal acts in this case: (1) he altered a temporary plate, a written instrument officially issued by a government agency; and (2) he displayed the altered temporary plate in his car. Only the second act is prohibited by § 42 — 3—133(l)(b). Significantly, nothing in that section or any other part of Article 3 establishes the penalty for a person who alters a registration plate by forgery.

The limited scope of Article 3 of Title 42 is also demonstrated by the fact that § 42-3-133(l)(b) prohibits the display, possession, or sale of a registration plate “knowing the same ... to have been stolen.” Nothing in § 42-3-133 or Article 3 addresses the moré serious offense of theft that is committed when a person steals a registration plate. Here again, the fact that the General Assembly only proscribed that conduct which most directly relates to the evasion of motor vehicle registration taxes shows that Article 3 of Title 42 was not intended to address all related types of criminal conduct. See People v. Tow, supra.

Accordingly, we conclude that defendant was subject to prosecution under the forgery statute and that his conviction for this offense does not violate equal protection princi-ples-

The judgment is affirmed.

Judge GRAHAM and Judge HUME concur.


text:
    David CLARK, Plaintiff-Appellee, v. David SCENA and Paula Scena, Defendants-Appellants.
    No. 02CA0535.
    Colorado Court of Appeals, Div. I.
    Dec. 4, 2003.

      Astrella & Rice, P.C., T.R. Rice, Denver, Colorado, for Plaintiff-Appellee.
    Stephen K. Gerdes, Denver, Colorado; Michael T. Scena, Denver, Colorado, for Defendants-Appellants.
   Opinion by

Chief Judge DAVIDSON.

Defendants, David and Paula Scena, appeal from the judgment of the trial court granting specific performance in favor of plaintiff, David Clark. We affirm.

Defendants and plaintiff entered into a contract under which plaintiff would purchase from defendants certain real property. After an extension, the transaction was set to close on April 16, 2001. Plaintiff received a commitment for a loan to purchase the property. However, because of the terms of this financing, the funds for the purchase of the property would be placed in escrow for three days following the closing, and plaintiff would have a three-day right to rescind the loan agreement. Defendants knew of these terms but did not inform plaintiff of any objection before the scheduled closing.

On April 13, 2001, defendants’ agent informed plaintiffs agent that defendants were taking the property off the market and can-eeling the scheduled closing. It was later determined that this decision was based on the failure of a third-party sale, which was financially necessary from defendants’ perspective for this sale to proceed. Plaintiffs agent informed defendants’ agent that plaintiff still intended to proceed to closing.

On April 16, 2001, plaintiff sent defendants a letter indicating that he was “ready, willing, and able” to close the sale. Neither party attended the scheduled closing, and no tender of the purchase price was made.

Pursuant to the terms of the contract, plaintiff sued for specific performance. After a bench trial, the trial court granted specific performance in favor of plaintiff. Defendants now appeal.

Defendants challenge the trial court’s determination that plaintiff had sufficiently performed his obligations under the contract to preserve his right to specific performance. Defendants argue that the trial court misapplied the relevant law and erred in making its factual determinations. We disagree.

I.

Defendants first assert that the trial court erred in determining the legal standard regarding the scope of plaintiffs obligation necessary to preserve his right to specific performance. We disagree.

Whether plaintiff sufficiently performed under the contract to preserve his right to specific performance is a mixed question of fact and law. Thus, we review the trial court’s legal conclusions de novo. See E-4-70 Pub. Highway Auth. v. 155 Co., 3 P.3d 18 (Colo.2000).

A.

Specific performance is an equitable remedy. Setchell v. Dellacroce, 169 Colo. 212, 454 P.2d 804 (1969). Therefore, one seeking specific performance has an obligation to “do equity.” See Golden Press, Inc. v. Rylands, 124 Colo. 122, 126, 235 P.2d 592, 595 (1951)(“courts require that he who seeks equity should do equity and come with clean hands”); Rolfes v. O’Connor, 844 P.2d 1330, 1333 (Colo.App.1992)(“A party seeking specific performance of a contract must not be guilty of the first substantial breach of that contract.”). Accordingly, we must determine what a buyer of real estate must do to “do equity” and preserve the right of specific performance.

1.

Defendants cite numerous cases that discuss varying standards regarding the character and scope of a buyer’s obligation. Some cases require the buyer to make reasonable efforts to perform all the obligations under the contract. See, e.g., Miller v. Carmody, 152 Colo. 353, 361, 384 P.2d 77, 81 (1963)(“to maintain a suit ... he must have himself first performed, or offered to perform, or shown sufficient excuse for not performing, all of the conditions required of him by the agreement”). Other cases require the buyer to provide the seller with unequivocal notice of the buyer’s unconditional commitment to be bound by the contract. See, e.g., Damiana v. Kowalski, 532 P.2d 773, 775 (Colo.App.1975)(not published pursuant to C.A.R. 35(f)). Other eases seemingly require compliance with both of these obligations. See, e.g., Nix v. Clary, 640 P.2d 246 (Colo.App.1981). Still other cases require a buyer to be “willing and able” to proceed with the transaction; these cases use the aforementioned standards as persuasive, but not determinative factors. See, e.g., Poznik v. Urton & Co., 30 Colo.App. 475, 478, 496 P.2d 1073, 1074 (1972)(citing Coppom v. Humphreys, 171 Colo. 410, 467 P.2d 816 (1970); “plaintiff was willing and able to perform his obligations under the terms of the contract and was entitled to specific performance of the contract for the sale of the land”), aff'd, 181 Colo. 15, 506 P.2d 741 (1973).

In ordering specific performance, the trial court found that (1) “there was no breach in this case on the part of plaintiff’; (2) plaintiff provided “unequivocal notice of his unconditional commitment to be bound by the contract”; and (3) “plaintiff was ready, willing and able” to perform under the contract.

2.

In our review of the relevant authorities, we note that the cases requiring a buyer’s performance and unequivocal notice usually involve the enforcement of receipt and option contracts as opposed to contracts for purchase and sale of property. In receipt and option contracts, in exchange for payment of a certain sum of money, the buyer receives an option to purchase the property at a set time for a set amount.

While a transaction pursuant to an option contract is functionally the same as a contract for the sale of property, see Ronald Brown, An Examination of Real Estate Purchase Options, 12 Nova L.Rev. 147 (1987), no valid contract to purchase exists until the buyer exercises the option. Columbia Sav. & Loan Ass’n v. Counce, 167 Colo. 365, 368, 447 P.2d 977, 978 (1968); see Schreck v. T & C Sanderson Farms, Inc., 37 P.3d 510, 513 (Colo.App.2001). Because a valid contract is a prerequisite to specific performance, a holder of an option must comply with the terms regarding the exercise of the option to be eligible for specific performance. See Stanton v. Union Oil Co., 111 Colo. 414, 421, 142 P.2d 285, 288 (1943); Winter Park Ranch, Inc. v. Richards, 545 P.2d 1367, 1369 (Colo.App.1975)(not published pursuant to C.A.R. 35(f)); see also Karakehian v. Boyer, 900 P.2d 1273 (Colo.App.1994)(an option must be exercised in strict compliance with its terms), rev’d in part on other grounds, 915 P.2d 1295 (Colo.1996).

However, in purchase and sale agreements, unlike in option contracts, a valid contract to buy is formed when both parties have agreed to the terms and have undertaken obligations pursuant to these terms. See Stelson v. Haigler, 63 Colo. 200, 208, 165 P. 265, 268 (1917)(“A contract of sale creates mutual obligations on the part of the seller to sell, and on the part of the purchaser to buy, while an option gives the right to purchase, within a limited time, without imposing any obligations to purchase.”). See generally Denver Truck Exch. v. Perryman, 134 Colo. 586, 592, 307 P.2d 805, 810 (1957) (essential elements of a contract are “competent parties, subject matter, a legal consideration, mutuality of agreement, and mutuality of obligations”). As a result, a buyer’s actions under the terms of the contract must be viewed in light of the seller’s conduct. Whether the purchase price was tendered or whether the buyer notified the seller of its intention to be bound, therefore, is not determinative of the buyer’s right to specific performance. See Coppom v. Humphreys, supra; Poznik v. Urton & Co., supra.

Thus, if a buyer and seller have entered into a binding agreement, to successfully seek specific performance, the buyer only need establish that he or she is “willing and able” to perform. See Coppom v. Humphreys, supra; Poznik v. Urton & Co., supra.

We note that in determining that a buyer was willing and able, courts have considered whether the buyer had partly performed under the contract or had provided notice to the seller of intent to perform. See Coppom v. Humphreys, supra. However, unlike in the cases involving receipt and option contracts, these factors are not determinative of a buyer’s entitlement to specific performance of a purchase and sale agreement.

B.

We have concluded that, under a purchase and sale contract, a buyer must establish that it was willing and able to close the transaction. We next consider defendants’ assertion that plaintiff did not preserve his right to specific performance because (1) plaintiff failed to tender at the time set for closing, and (2) he was unable to tender. We conclude plaintiffs lack of tender was not determinative because he was not required to comply with the terms of the contract to preserve his right to specific performance. Instead, the lack of tender was a factor to be evaluated by the trial court, along with other evidence, in determining whether plaintiff was willing and able to close the transaction.

We also conclude that plaintiffs alleged lack of the financial ability to tender was not dispositive in determining plaintiffs compliance with his obligation. None of the cases cited by defendants set forth any such requirement. See Howard v. Interstate Development Co., 29 Colo.App. 287, 483 P.2d 1366 (1971); Poznik v. Urton & Co., supra; and Damiana v. Kowalski, supra.

Indeed, insofar as these authorities imply that a buyer must show the ability to pay, such ability to pay is considered, not as a necessary factor, but merely as evidence supporting the ultimate determination of fact. For example, in option cases, the .ability to pay has been persuasive of a buyer’s commitment to be bound by the contract. See, e.g., Damiana v. Kowalski, supra, 532 P.2d at 775. In purchase and sale contracts, an evaluation of a buyer’s ability to pay may be persuasive to a trial court in determining whether the buyer was willing and able to close the transaction. See, e.g., Poznik v. Urton & Co., supra, 30 Colo.App. at 476, 496 P.2d at 1073-74 (because “plaintiffs attorney was holding a certified check for the balance of the purchase price to be delivered to the seller at the closing,” plaintiff was willing and able to close the transaction).

In evaluating a buyer’s ability to pay, courts have considered all relevant evidence, including evidence of a seller’s conduct preventing the buyer from establishing its ability to pay. For example, notice provided by the seller of its intention not to proceed with the transaction has been held relevant in evaluating whether the buyer had the ability to pay. See Poznik v. Urton & Co., supra, 30 Colo.App. at 478, 496 P.2d at 1074 (when the defendant refused to perform, plaintiff was not required to make “an idle or useless gesture of tender”).

C.

Defendants nevertheless contend that the trial court erred in granting specific performance because the “time is of the essence” clause in the contract here required plaintiff to perform at the time set for closing. Thus, defendants argue that plaintiffs failure to perform at that time was determinative of plaintiffs right to specific performance. Again, we disagree.

If “time is of the essence” to the contract for sale, a delay by the buyer from the time originally set for closing will prevent specific performance in the buyer’s favor. See White v. Greenamyre, 77 Colo. 33, 234 P. 164 (1925).

Accordingly, defendants’ assertion that plaintiff had to perform at the time set for closing to preserve his right to specific performance is legally inaccurate. Instead, the “time is of the essence” clause merely prevented the trial court from evaluating whether plaintiff was willing and able to perform at a date later than the date set for closing. The presence of this clause required the trial court to evaluate, as it did here, whether plaintiff was willing and able to close the transaction at the time set for closing, instead of at some later time.

II.

We also disagree with defendants that the trial court erred in finding that plaintiff was “ready, willing, and able” to close the transaction at the time of the closing.

Defendants assert that the trial court ignored the significance of plaintiffs failure to tender payment at the time of closing and his intended use of a three-day escrow to close. However, the trial court has discretion to weigh conflicting evidence in the record in making its determination and we will uphold its 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 evidence in the record supports the trial court’s finding that plaintiff was willing and able to close the transaction. As to plaintiffs willingness, the record indicates plaintiff sent a letter to defendants on the day of scheduled closing indicating his desire to close. Furthermore, the testimony of both the buyer’s and seller’s agents indicated that plaintiff desired to close.

As to plaintiffs ability to close, there was evidence that he had acquired the funds necessary to close through approval of a loan for the amount required at closing. Although defendants assert that the use of the escrow established that plaintiff lacked the ability to close the transaction, the trial court found that plaintiff would have delivered cash at closing had defendants objected to the escrow. This finding is supported by plaintiffs testimony. The court also discounted the escrow evidence because defendants refused to participate in the closing. As a result, plaintiff was denied the opportunity to prove his ability to close the transaction.

Accordingly, we conclude that no error occurred here.

Because of our disposition here, we need not reach defendants’ other arguments. And because plaintiff has not filed a cross-appeal, we also decline to address his claim for further relief based on defendants’ failure to timely convey the property.

The judgment is affirmed.

Judge DAILEY and Judge LOEB concur.


author: Judge MARQUEZ.

text:
    UNION INSURANCE COMPANY, a Nebraska corporation, Plaintiff-Appellee, v. Evelyn HOTTENSTEIN, Defendant-Appellant.
    No. 02CA2255.
    Colorado Court of Appeals, Div. II.
    Dec. 4, 2003.

      Retherford, Mullen, Johnson & Bruce, LLC, Jerry A. Retherford, Debra P. DeRee, Neil C. Brace, Colorado Springs, Colorado, for Plaintiff-Appellee.
    Campbell Bohn Killin Brittan & Ray, LLC, Michael G. Bohn, Daniel P. Queen, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge MARQUEZ.

In this action for declaratory relief involving a commercial general liability insurance policy, defendant, Evelyn Hottenstein, appeals the summary judgment in favor of plaintiff, Union Insurance Company. We affirm.

In 1998, Hottenstein filed a complaint against a construction company and its owner, alleging several claims, including breach of a contract to remodel her home and negligence. In 1999, pursuant to a provision in the construction contract, Hottenstein and the construction company arbitrated the dispute. The arbitrator awarded damages to Hottenstein in the amount of $80,165 calculated as follows:

A.Benefit of the Bargain Damages
$35,800 1. Costs to complete contract
2. Costs to remedy defects (includes damages to repair inadequate work and to replace or repair personal property) + 34,017
3. Unpaid balance of contract price
a. Contract price 44,137
b. Progress payments paid - 34,745
(Subtract b. from a. to calculate unpaid balance of contract price) (9,392)
4. Damages for lost business income + 4,125
5.Damages for lost rental income + 2,700
[(1 + 2- 3] + 4 + 5 = total benefit of the bargain damages 67,250
B.Damages for Negligent Performance (i.e., damage to existing
roof) 9,915
C.Damages for loss of enjoyment 3,000
Total Damages 80,165

Hottenstein later had the award reduced to a judgment.

The construction company was covered by Union under a commercial general liability policy. Union defended the construction company in the arbitration under a reservation of rights.

In July 2000, Union commenced this action for declaratory relief. Union admitted liability for the $9,915 negligence award, but sought a declaration that it had no duty to indemnify the construction company for the balance of the arbitration award.

After Union filed a motion for summary judgment, the trial court granted Hotten-stein an enlargement of time until September 24, 2002 in which to respond to the motion. However, the court granted Union’s motion on September 20, 2002. The trial court held that Union had no duty to indemnify the construction company for the damages of $67,250 for breach of contract and $3,000 for loss of enjoyment.

On September 24, 2002, Hottenstein filed her response to the motion for summary judgment, her cross-motion for summary judgment, and her motion for reconsideration, but the trial court summarily denied the motions.

I.

Hottenstein contends that the trial court erred by granting the motion for summary judgment without giving her an opportunity to oppose it as required by C.R.C.P. 56(e) and 121 § 1-15. We agree, but find the error to be harmless.

Our review of a summary judgment is de novo. Aspen Wilderness Workshop, Inc. v. Colo. Water Conservation Bd., 901 P.2d 1251 (Colo.1995).

C.R.C.P. 56 contemplates that opposing parties win be provided an opportunity to respond to authority cited in support of a motion for summary judgment. Antelope Co. v. Mobil Rocky Mtn., Inc., 51 P.3d 995 (Colo.App.2001). C.R.C.P. 56(c) provides that the party opposing a summary judgment motion “may file and serve opposing affidavits within the time allowed for the responsive brief.” However, judgment “shall be rendered forthwith” if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, show that no genuine issue exists as to any material fact and that the moving party is entitled to a judgment as a matter of law. See also Civil Serv. Comm’n v. Pinder, 812 P.2d 645 (Colo.1991).

Under C.R.C.P. 121 § 1-15(1), a trial court must allow fifteen days or such time as the court otherwise allows for a nonmoving party to file responses or objections to motions involving contested issues of law. Ogawa v. Riley, 949 P.2d 118 (Colo.App.1997)(motion for judgment against surety). Failure to allow a party to respond within the allotted time constitutes an abuse of discretion. Weatherly v. Roth, 743 P.2d 453 (Colo.App.1987)(motion to dismiss); Lanes v. Scott, 688 P.2d 251 (Colo.App.1984)(motion to dismiss).

However, we disregard errors or defects in the proceeding that do not affect the substantial rights of the parties. C.R.C.P. 61. A party’s substantial right is one that relates to the subject matter and not to a matter of procedure or form. Sowder v. Inhelder, 119 Colo. 196, 201 P.2d 533 (1948); Cobbin v. City & County of Denver, 735 P.2d 214 (Colo.App.1987).

Here, the trial court erroneously granted summary judgment in favor of Union four days before Hottenstein’s response was due. However, Hottenstein’s response, cross-motion, and related briefs are available in the record for our de novo review. On that review, we conclude that summary judgment was nonetheless proper, as discussed in the following sections.

II.

Hottenstein contends that the trial court both misapplied the law and misconstrued the facts when it determined that the insurance policy established no duty for Union to indemnify the construction company for the arbitration award. We disagree.

A.

We first reject Hottenstein’s contention that the trial court overlooked certain ambiguities and conflicting terms in the insurance contract that are material to the interpretation of the contract and give rise to issues of material fact.

Hottenstein’s response and motions included only one affidavit, that of counsel stating that further discovery is necessary as to (1) Union’s decision to deny indemnity and custom and practice in paying similar claims, and (2) the intent of Union and the owner of the construction company at the time they entered into the insurance contract.

However, the intent of the parties should be determined from the language of the contract itself. Extrinsic evidence is not admissible until the contract has been found to be ambiguous. Whether a contract is ambiguous is a question of law that we review de novo. Antelope Co. v. Mobil Rocky Mtn., Inc., supra.

Therefore, we review the contract to determine whether it is ambiguous and conclude that it is not. Thus, counsel’s request for further discovery was properly denied in any event.

B.

Language is ambiguous if it is susceptible of more than one reasonable interpretation. Dupre v. Allstate Ins. Co., 62 P.3d 1024 (Colo.App.2002). A mere potential for more than one meaning does not create an ambiguity. Allstate Ins. Co. v. Juniel, 931 P.2d 511 (Colo.App.1996).

Here, the contract provides a general grant of coverage for “property damage liability.”

1. Insuring Agreement
a. We will pay those sums that the insured becomes legally obligated to pay as damages because of ... “property damage” to which this insurance applies.
b. This insurance applies to ... “property damage” only if:
(1) The ... “property damage” is caused by an “occurrence” that takes place in the “coverage territory.”

The policy includes several exclusions and exceptions to the exclusions, including:

2. Exclusions
This insurance does not apply to:
a. Expected or Intended Injury
“[Pjroperty damage” expected or intended from the standpoint of the insured ....
b. Contractual Liability
“[Pjroperty damage” for which the insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages:
(1) Assumed in a contract or agreement that is an “insured contract,” provided the ... “property damage” occurs subsequent to the execution of the contract or agreement; or
(2) That the insured would have in the absence of the contract or agreement.
j. Damage to Property
(5) That particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the “property damage” arises out of those operations; or
(6) That particular part of any property that must be restored, repaired, or replaced because “your work” was incorrectly performed on it.
Paragraph (6) of this exclusion does not apply to “property damage” included in the “products-completed operations hazard.”

(Emphasis supplied.)

The policy defines the terms used. An “insured contract” means a “contract for lease of property.” The definitions for “your product” and “your work” are separate but identical.

“Your product” and “your work” include:
a. Warranties or representations made at any time with respect to the fitness, quality, durability, performance, or use of “your product/work.”
‘Tour work” means:
a. Work or operations performed by you or on your behalf; and
b. Materials, parts or equipment furnished in connection with such work or operations.
“Occurrence” means an accident, including continuous or repeated exposure to substantially the same general harmful conditions.
“Products-completed operations hazard” includes all “bodily injury” and “property damage” occurring away from premises you own or rent and arising out of “your product” or “your work” except:
(1) Products that are still in your physical possession; or
(2) Work that has not yet been completed or abandoned.

The contract between Hottenstein and the construction company states: “All work is to be completed in a workmanlike manner according to standard practices.”

Hottenstein asserts alternatively that the warranty is an “insured contract” within the meaning of the insurance policy or that, consistent with Lembke Plumbing & Heating v. Hayutin, 148 Colo. 334, 366 P.2d 673 (1961), the construction company had a common law duty apart from the contract to provide services in a workmanlike manner. According to Hottenstein, either approach takes the damages done by the construction company out of the contract exception. She contends that all the damages caused by the construction company, whether characterized by the arbitrator as breach of contract or negligence damages, are then “occurrences” that are covered by the insurance policy.

Additionally, Hottenstein asserts that such a grant of coverage would cause the general coverage grant to conflict with the “products-completed operations hazard.” If the construction contract falls within the exception to the contractual liability exception, a breach of the warranty would be indemnified under the policy. However, she asserts that a breach of the warranty would not be covered under the “products-completed operations hazard.” Therefore, she contends an ambiguity exists that must be construed against Union and in her favor. We are not persuaded.

The policy defines an “insured contract” as a “contract for a lease of premises.” The construction contract does not fall within that definition.

Further, Hottenstein’s reliance on Lembke Plumbing & Heating v. Hayutin is misplaced. The issue in that case was the extent of the contractor’s liability to the homeowner, and the contract at issue was between the contractor and the homeowner. The contractor’s faulty plumbing work resulted in the escape of water, saturation of the clay formation beneath the house, and cracks in the floor. The supreme court held that the homeowner had a cause of action for negligence as well as for breach of contract because the contractor had a common law duty to perform its work with due care and skill.

Here, Hottenstein has already obtained a judgment against the construction company for damages for negligence and breach of contract. She cannot now recharacterize her contract damages as negligence damages.

Also, in Lembke Plumbing & Heating v. Hayutin, the damage extended far beyond the scope of the contractor’s work. Here, Union does not dispute coverage for the unintended and unexpected damage to Hot-tenstein’s roof in the amount of $9,915. Union disputes only coverage for damages arising from the breach of the construction contract.

Hottenstein also relies on Simon v. Shelter General Insurance Co., 842 P.2d 236 (Colo.1992), and asserts that it is directly on point. In Simon, the plaintiff was seriously burned when she fell into a hot tub that had been reconditioned by the defendant’s insured. The supreme court held that the exclusion in the body of the policy conflicted with a completed-products operation hazard in the policy endorsements, and the court resolved the ambiguity in favor of the homeowner. However, the contract exclusion in the policy there contained language not present here. The Simon policy provided: “[T]his exclusion does not apply to a warranty of -fitness or quality of the named insured’s products or a warranty that work performed by or on behalf of the named insured will be done in a workmanlike manner.”

Even if we were to find that the exception to the contract exclusion applies, Hottenstein must demonstrate that the construction company’s acts in breaching the contract could fall under the definition of an “accident” and therefore constitute a eovera-ble “occurrence.” She has not done so.

An “accident” is an unanticipated or unusual result flowing from a commonplace cause. Carroll v. CUNA Mut Ins. Soc’y, 894 P.2d 746 (Colo.1995); Fire Ins. Exch. v. Bentley, 953 P.2d 1297 (Colo.App.1998). A breach of contract is not generally an accident that constitutes a covered occurrence. Pace Constr. Co. v. United States Fid. & Guar. Ins. Co., 934 F.2d 177 (8th Cir.1991); Yegge v. Integrity Mut. Ins. Co., 534 N.W.2d 100 (Iowa 1995).

In Yegge, as here, a homeowner obtained a judgment against a contractor for poor performance and then sought indemnity from the contractor’s insurer. The policy there defined “occurrence” in the same way as the policy here does. The Iowa court held that construing the contractor’s breach of contract due to his poor performance as an accident would have converted a general business liability policy into a performance bond, a risk that the insurer clearly did not undertake.

■ Hottenstein’s reliance on Wells Dairy, Inc. v. Travelers Indemnity Co., 241 F.Supp.2d 945 (N.D.Iowa 2003), is misplaced. In Wells Dairy, customers of an ice cream manufacturer sought indemnity from the manufacturer’s insurer when the manufacturer breached its contract to supply the customers. However, the-incident that led to the manufacturer’s breach was an explosion and fire in its dairy, not poor workmanship.

■ Hottenstein also cites Auto-Owners Insurance Co. v. Toole, 947 F.Supp. 1557 (M.D.Ala.1996). There, the court declined to proclaim a broad rule that claims sounding in contract are not occurrences. The court held that a reviewing court should look to the kind of claim asserted, whether it is a tort, contract, or other type of claim. However, the court declined to find a covered occurrence because the claim arose out a business dispute. The court held that finding the breach of a business contract to be an occurrence would distort the purpose of liability insurance policies.

We similarly conclude that poor workmanship constituting a breach of contract is not a covered occurrence here and that the policy’s exception to the contract exclusion does not apply. Therefore, the policy is not ambiguous, and the court properly applied the law.

HI

Hottenstein also contends that the question whether Union would indemnify its insured was not at issue in the arbitration, and the arbitration never addressed disputed issues of material fact, such as the intent of the parties when they entered into the insurance contract. She also argues that the arbitration did not address Union’s custom and practice in paying similar claims. Union asserts that the arbitration award is binding and precludes relitigating the categorization of damages at this point. We agree with Union.

An arbitration award is binding upon the parties, and the merits of an arbitrator’s award are not subject to review by the courts. Foust v. Aetna Cas. & Ins. Co., 786 P.2d 450 (Colo.App.1989); see Checkrite of San Jose, Inc. v. Checkrite, Ltd., 640 F.Supp. 234 (D.Colo.1986). The arbitrator is the final judge of all questions of law and fact. Judd Constr. Co. v. Evans Joint Venture, 642 P.2d 922 (Colo.1982); Foust v. Aetna Cas. & Ins. Co., supra.

Principles of collateral estoppel and res judicata may be applied to give preclusive effect to an arbitration award. Dale v. Guar. Nat’l Ins. Co., 948 P.2d 545 (Colo.1997); see Checkrite of San Jose, Inc. v. Checkrite, Ltd., supra.

Collateral estoppel, or issue preclusion, bars relitigation of an issue if (1) the issue precluded is identical to an issue actually determined in the prior proceeding, (2) the party against whom estoppel is asserted was a party in the prior proceeding, (3) there is a final judgment on the merits in the prior proceeding, and (4) the party against whom estoppel is asserted had a full and fair opportunity to litigate the issue in the prior proceeding.

Here, Hottenstein and the construction company represented by counsel retained by Union were both parties in the arbitration and had a full and fair opportunity to litigate issues surrounding liability for damages due Hottenstein for all claims. The arbitrator made a final award delineating which damages were attributable to breach of contract and negligence, and Hottenstein did not appeal the judgment confirming the arbitrator’s award.

Courts in other jurisdictions have similarly concluded that parties were collaterally es-topped from relitigating issues determined by an arbitration panel. See Herriford v. Boyles, 193 Ill.App.3d 947, 140 Ill.Dec. 769, 550 N.E.2d 654 (1990)(by choosing to proceed to arbitration and in that forum having their damages properly and conclusively determined, plaintiffs are collaterally estopped from relitigating that issue and any other issue necessarily determined in that proceeding); Bailey v. Metr. Prop. & Liab. Ins. Co., 24 Mass.App.Ct. 34, 505 N.E.2d 908 (1987)(party not involved in a prior arbitration may use the award in that arbitration to bind his opponent if the party to be bound was before the arbitrator and had a full and fair opportunity to litigate the issue, and the issue was actually decided by the arbitrator or was necessary to his decision); Manu-Tronics, Inc. v. Effective Mgmt. Sys., Inc., 163 Wis.2d 304, 471 N.W.2d 263 (Wis.Ct.App.1991)(plaintiff cannot now complain that it was denied a fair and full opportunity to present its claims when it was given the same procedural and substantive rights in the arbitration proceeding that it would have enjoyed in circuit court).

We conclude the trial court properly relied upon both the arbitrator’s findings of fact and conclusions of law in granting Union’s motion for summary judgment. Although the motion was granted prematurely, that error was harmless because Hotten-stein’s substantial rights were adequately protected by the arbitration process and de novo appellate review.

IV.

Because we have concluded that the policy is unambiguous, extrinsic evidence would not be admissible to determine the intent of the parties to the insurance contract. Therefore, further discovery would not be appropriate, and any error in disallowing discovery was harmless.

We thus conclude that since the insurance policy is unambiguous and no genuine issues of material fact exist, the trial court did not err in awarding summary judgment in favor of Union.

The judgment is affirmed.

Judge ROTHENBERG and Judge GRAHAM concur.


text:
    Lora M. MULLINS, in her individual capacity and as surviving spouse of John Mullins, deceased, Plaintiff-Appellant, v. Randolph M. KESSLER, M.D., Defendant-Appellee.
    No. 02CA2564.
    Colorado Court of Appeals, Div. V.
    Dec. 18, 2003.

      Law Offices of Robert M. Fitzgerald, Robert M. Fitzgerald, Northglenn, Colorado; Benjamin Silva, III & Associates, P.C., Benjamin Silva, III, Lakewood, Colorado, for Plaintiff-Appellant.
    Pryor Johnson Montoya Carney & Karr, P.C., Bruce A. Montoya, Scott S. Nixon, Elizabeth C. Moran, Greenwood Village, Colorado, for DefendanL-Appellee.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const, art. VI, § 5(3), and § 24-51-1105, C.R.S.2003.

   Opinion by

Judge CASEBOLT.

In this medical negligence action, plaintiff, Lora M. Mullins, appeals the trial court’s order awarding costs in favor of defendant, Randolph M. Kessler, M.D. We affirm.

Plaintiff alleged that defendant’s negligent care of her husband during surgery caused his death. A jury found in defendant’s favor.

Defendant filed a bill of costs under § 13-16-105, C.R.S.2003, seeking recovery of $33,355.06 paid by his liability insurer. The trial court awarded all of the costs requested, and this appeal followed.

I.

Plaintiff contends the award is erroneous because defendant’s liability insurer paid the costs and, therefore, defendant is not the real party in interest. We disagree.

Every action must be prosecuted in the name of the real party in interest. C.R.C.P. 17(a). A real party in interest is that party who, by virtue of substantive law, has the right to invoke the court’s aid to vindicate the legal interest in question. Goodwin v. Dist. Court, 779 P.2d 837 (Colo.1989).

Here, defendant, as the named party in this action and the party on whose behalf costs were incurred, has the substantive right to receive reimbursement for such costs. The arrangement between defendant and his liability insurer for the disbursement and repayment of those costs is of no consequence. See City of Wheat Ridge v. Cerveny, 913 P.2d 1110 (Colo.1996)(a party need not be obligated to pay attorney fees to be entitled to such an award as authorized by statute); Hale v. Erickson, 23 P.3d 1255 (Colo.App.2001)(defendant does not have to pay or be liable for costs to recover them under the offer of settlement statute); Little v. Fellman, 837 P.2d 197 (Colo.App.1991) (defendant has the right to seek attorney fees as the real party in interest even though his insurance company paid such fees), overruled on other grounds by In re Marriage of Aldrich, 945 P.2d 1370 (Colo.1997); see also Aspen v. Bayless, 564 So.2d 1081 (Fla.1990)(litigation costs may be awarded to the prevailing party even when such costs have been paid by that party’s insurance company).

Accordingly, the court properly awarded costs to defendant as the real party in interest.

II.

Plaintiff next contends that the Health Care Availability Act (HCAA), § 13-64-101, et seq., C.R.S.2003, precludes recovery of costs. We disagree.

When construing a statute, wé must determine the General Assembly’s intent. In doing so, we examine all statutes that pertain to the subject matter at issue, and we favor a construction that gives consistent and harmonious effect to all provisions. Bontrager v. La Plata Elec. Ass’n, 68 P.3d 555 (Colo.App.2003).

Pursuant to § 13-16-105, “in any action wherein the plaintiff ... might have costs in case judgment is given for him and ... a verdict is passed against him, then the defendant shall have judgment to recover his costs against the plaintiff.” Likewise, C.R.C.P. 54(d) provides that costs shall be awarded to the prevailing party unless mandated otherwise by statute or court order.

The HCAA governs the substantive law of medical negligence claims. Its stated purpose is to contain the significantly increasing costs of malpractice insurance in order to assure the continued availability of adequate health care services. Section 13-64-102, C.R.S. 2003.

Plaintiff asserts that the HCAA provision creating a mechanism for insurers to assert their subrogation rights for medical benefits paid to a plaintiff implies the exclusion of a cost recovery process. See § 13-64-402, C.R.S.2003. However, there is no indication that this provision is meant to supplant a prevailing party’s right to recover costs. See C.R.C.P. 54(d).

Plaintiff also relies upon § 13-64-205(l)(b), C.R.S12003. That provision requires a court, in determining what judgment to enter on a verdict finding for a plaintiff and awarding special damages, to specify the payment of attorney fees and litigation expenses in a manner separate from the periodic installments payable to a successful plaintiff. However, that provision is meant to protect plaintiffs’ attorneys and to honor any agreement between a successful plaintiff and his or her attorney concerning payment and reimbursement of costs and attorney fees. It says nothing that would preclude or affect a prevailing defendant’s right to recover costs and does not imply a repeal of § 13-16-105.

Moreover, plaintiffs argument is inconsistent with the purpose of the HCAA. Because all Colorado physicians are required to carry liability insurance while practicing medicine, their insurers bear the responsibility of providing them with defenses against malpractice claims and indemnification of losses resulting therefrom. See § 13-64-301(l)(a), C.R.S.2003. If recovery of costs were denied, . liability insurers would be forced to absorb such expenditures, inevitably passing the losses on to their policyholders. Hence, physicians would face increased costs for malpractice insurance, contrary to the HCAA’s objective. See Hale v. Erickson, supra (a statute should be read to give effect to its policy and objective and to avoid interpretations that nullify its purpose and intent).

Because the HCAA does not mandate otherwise, we construe it in harmony with § 13-16-105 and C.R.C.P. 54(d) to allow a prevailing defendant to recover costs in a medical negligence action.

III.

Plaintiff argues alternatively that the trial court erred by awarding defendant the full amount of his requested costs. She argues that defendant failed to show such expenses were reasonable or necessary. We disagree.

Generally,, the award of costs to prevailing parties lies within the sound discretion of the trial court. In reviewing such an award, we will not overturn that determination absent a clear abuse of discretion. Ballow v. PHICO Ins. Co., 878 P.2d 672 (Colo.1994).

Here, the trial court found all the requested costs to be reasonable and necessarily incurred for the preparation and defense of his case. Upon review of the bill of costs, we perceive no abuse of discretion in the trial court’s determination. Therefore, we decline to disturb the award.

PICCONE and CRISWELL, JJ., concur.