author: Judge DAVIDSON.

text:
    REGIONAL TRANSPORTATION DISTRICT, a political subdivision of the State of Colorado, Plaintiff-Appellant, v. AURORA PUBLIC SCHOOLS and Adams-Arapahoe School District 28-J, Defendants-Appellees.
    No. 00CA2340.
    Colorado Court of Appeals, Div. IL.
    Nov. 8, 2001.
    Certiorari Denied May 13, 2002,

      James A. Stadler, Erica A. Weber, Denver, CO, for Plaintiff-Appellant.
    Patterson, Nuss & Seymour, P.C., Craig S. Nuss, Lee N. Bowden, Englewood, CO, for Defendants-Appellees.
   Opinion by

Judge DAVIDSON.

Plaintiff, Regional Transportation District (RTD), appeals from the trial court's judgment in favor of defendants, Aurora Public Sehools and Adams-Arapahoe School District 28-J. The issue addressed on appeal is construction of the 1991 amendment to § 10-4-713(2)(a), C.R.8.2001. We affirm.

An Aurora Public Schools bus struck the rear end of an RTD bus. Passengers on the RTD bus were injured and received personal injury protection (PIP) benefits from RTD pursuant to the Colorado Auto Accident Reparations Act, § 10-4-701, et seq., C.R.8.2001 (No-Fault Act).

Generally, PIP benefits are not recoverable by subrogation against a tortfeasor. However § 10-4-713(2)(a), under limited circumstances, allows the insurer of certain vehicles to file a subrogation claim against the operator of a nonprivate passenger vehicle for PIP benefits paid.

Seeking to recover the PIP benefits it paid to its passengers, RTD filed a declaratory judgment action requesting that the court rule as a matter of law that it could proceed in subrogation against defendants under § 10-4-713(2)(a).

In response, defendants filed a motion for summary judgment, which the trial court granted. The court determined that § 10-4-713(2)(a), as amended in 1991, and as relevant here, applied only to public school vehicles and consequently did not permit RTD to bring an action for reimbursement of PIP benefits. Alternatively, the court also concluded that RTD would otherwise be barred from bringing a subrogation claim because it had not timely demanded arbitration proceedings pursuant to § 10-4-717(1), C.R.S. 2001.

In 1991, § 10-4-713(2)(a) was amended to add the following emphasized language:

[wlhere a motor vehicle accident involves a private passenger motor vehicle, a public school vehicle designed to transport seven or more passengers, and a nonprivate passenger motor vehicle, the insurer of the private passenger motor vehicle or the insurer of the vehicle designed to transport seven or more passengers shall have a direct cause of action for all benefits actually paid by such insurer....

Colo. Sess. Laws 1991, ch. 208, § 10-4-7183(2)(a) at 1190.

RTD contends that the trial court erred by concluding that the added language in § 10-4-718(2)(a), pertaining to "the vehicle designed to transport seven or more passengers" refers only to public school vehicles. RTD argues that the court's interpretation is contrary to the rules of statutory construction and public policy. We disagree.

We interpret statutes de movo. See United Airlines, Inc. v. Industrial Claim Appeals Office, 998 P.2d 1152 (Colo.2000). A statute must be interpreted as a whole to allow consistent application of all its parts. To effectuate the intent of the General Assembly, in construing statutory language we look first to the language of the statute itself, giving words and phrases their commonly accepted meaning. See Slack v. Farmers Ins. Exchange, 5 P.3d 280 (Colo.2000); Ward v. Ward, 928 P.2d 739 (Colo.App.1996).

Here, the trial court determined that the language of the amendment was unambiguous. The court found that the phrase "the vehicle designed to transport seven or more passengers" simply referred back to the earlier part of the sentence, "a public school vehicle designed to transport seven or more passengers." The trial court also noted that the legislative history of the statute supported this interpretation.

RTD contends that, to the contrary, the statute is ambiguous, as illustrated by the fact that the trial court, to reach its conclusion, had to "add" the words "public school" to modify the phrase "the vehicle designed to transport seven or more passengers." We disagree.

Although we agree with RTD that the statute is inartfully drafted, it is not ambiguous. The phrases "a public school vehicle designed to transport seven or more passengers" and "or the insurer of the vehicle designed to transport seven or more passengers," were the only two phrases added by the 1991 amendment, see Senate Committee of Reference Report, Committee on Business Affairs and Labor, April 16, 1991, at 4, and plainly address the same type of vehicle, that is, public school buses.

Importantly, the word "the" is "used as a function word to indicate that a following noun or noun equivalent is definite or has been previously specified by context or circumstance." Webster's Third New International Dictionary 2868 (1976). Therefore, use of "the" as the article introducing the phrase "vehicle designed to transport seven or more passengers" is a reference back to the previously specified entity, "a public school vehicle designed to transport seven or more passengers."

Moreover, the parallel construction of this sentence of the statute indicates that the General Assembly intended the phrases "the private passenger motor vehicle," "the vehicle designed to transport seven or more passengers," and "the nonprivate passenger motor vehicle" to refer back to the phrases "a private passenger motor vehicle," "a public school vehicle designed to transport seven or more passengers," and "a nonprivate passenger motor vehicle" in the earlier portion of the sentence. See § 10-4-718(2)(a) (emphasis added).

RTD argues, however, that the policy underlying the original statute was to expand subrogation rights, and, therefore, a restrictive construction of the 1991 amendment violates that purpose. We disagree. To the contrary, § 10-4-71838(@2)(a), as originally enacted, clearly limited PIP subrogation rights to a few exceptional cireumstances. As relevant here, the policy underlying the statute was to prevent a premium shift by allowing insurers of private passenger vehicles to seek subrogation from insurers of commercial vehicles, which were larger and tended to do more damage. See Hearings on H.B. 1027 before the Senate Committee on Business Affairs and Labor, 49th General Assembly, First Regular Session (Feb. 21 and 28, 1973); see also Farmers Ins. Exchange v. Bill Boom Inc., 961 P.2d 465 (Colo.1998).

The language of the 1991 amendment merely included another category-insurers of public school buses-to that exclusive list of insurers entitled to PIP subrogation rights against commercial vehicles. See Hearing on H.B. 1183/18 before the Senate Committee on Business Affairs and Labor, 58th General Assembly (March 16, 1991)(statement of Senator Mutzebaugh).

We also note that when the General Assembly wanted RTD to be included within the seope of a particular provision of the No-Fault Act, it expressly did so. See, eg., § 10-4-713(2)(b), C.R.S.2001 (exeluding the "regional transportation district" from Hability for reimbursement of PIP benefits under § 10-4-718(2)(a)).

RTD also argues that, nevertheless, as a policy matter, its passenger buses should be included as "public school vehicles" because they in fact transport students.

However, RTD's primary function is not the transportation of public school students, but the transportation of a wide range of paying passengers. See § 32-9-107, C.R.S. 2001 (granting regional transportation district authority to create mass transportation system for the benefit of the inhabitants of the district). That an RTD bus happens to transport public school students on occasion is merely incidental to its primary purpose. Cf. § 42-1-102(88) C.R.S.2001 (defining a school bus as "every motor vehicle which is owned by or under contract to a public or governmental agency and operated for the transportation of children to or from sehool or any school-sponsored activities"); § 42-4-1901, et seq., C.R.S8.2001 (regulating school buses and their drivers).

Based on our disposition of this matter, it is unnecessary to address RTD's argument that, regardless of the supreme court's opinion in State Farm Mutual Insurance Co. v. Cabs, Inc., 751 P.2d 61 (Colo.1988), the trial court erred in determining that RTD would be required to timely demand arbitration pursuant to § 10-4-717(1).

The judgment is affirmed.

Judge MARQUEZ and Judge ROY concur.


source: Caselaw Access Project

author: Judge PLANK.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Randall W. FRIESEN, Defendant-Appellant.
    No. 00CA2220.
    Colorado Court of Appeals, Div. IL
    Nov. 23, 2001.
    Certiorari Denied April 29, 2002.
    Ken Salazar, Attorney General, Michelle L. Prince, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.
    Randall W. Friesen, Pro Se.
   Opinion by

Judge PLANK.

Defendant, Randall W. Friesen, appeals the trial court order denying his Crim. P. 85 motion for postconviction relief. We affirm.

Defendant entered guilty pleas to two counts of theft, a class four felony under § 18-4-401, C.R.S8.2001. Pursuant to the plea agreement, he was sentenced to two seven-year terms in the Department of Corrections (DOC), to be served concurrently.

Thereafter, defendant filed a Crim. P. 85(c) motion, alleging that he had not been advised of the mandatory parole term that attached to his sentences and asserting that the addition of mandatory parole to his sentences violated the separation of powers doctrine and the prohibition against double jeopardy. The trial court denied the motion, and a division of this court affirmed. People v. Friesen, (Colo.App. No. 98CA0861, June 24, 1999)(not selected for official publication).

Defendant then filed a second postconviction motion, citing both Crim. P. 35(a) and (c), in which he asserted that the application of the mandatory parole period violated his constitutional right to equal protection of the laws. The trial court also denied this motion without a hearing, finding that defendant had not met the threshold for an equal protection challenge.

On appeal, defendant contends that his right to equal protection is being violated because he must serve a term of mandatory parole on his class four felony offenses, while class four felony sex offenders who committed their offenses between July 1, 1996, and November 1, 1998, are subject only to discretionary parole under §§ 18-1-105(1)(a)(V)(A) & (C.3), C.R.S.2001 and People v. Cooper, 27 P.3d 348 (Colo.2001). We reject this contention.

The constitutional right to equal protection guarantees like treatment of persons who are similarly situated. Thus, the threshold question in an equal protection challenge is whether the person alleging disparate treatment is in fact similarly situated. People v. Black, 915 P.2d 1257 (Colo.1996).

In the criminal law context, it is only when identical criminal conduct is punished with disparate penalties, or different criminal penalties are imposed for similar criminal acts, that equal protection problems arise. People v. Young, 859 P.2d 814 (Colo.1993); People v. Seaney, 36 P.3d 81 (Colo.App.2000). See also People v. Owens, 670 P.2d 1233 (Colo.1983)(subjecting a defendant to a more severe sanction for criminal conduct identical to that proscribed by another statute violates equal protection).

Here, defendant argues that the General Assembly created classes of offenders in enacting the penalty provisions of § 18-1-105(1)(a)(V)(A). He further argues that therefore, as a class four felony offender, he is being penalized more harshly for conduct that is less severe than that of a class four felony sex offender,. This argument is mistaken.

Section 18-1-105(1)(a)(V)(A) states, in pertinent part, that "felonies are divided into six classes which are distinguished from one another by the following presumptive ranges of penalties." Thus, the statute creates penalty ranges for classes of offenses and does not create classes of offenders, as defendant argues. The cases he cites in support of his proposition are inapposite. In People v. Nguyen, 900 P.2d 37 (Colo.1995); Smith v. People, 852 P.2d 420 (Colo.1993); and People v. Oliver, 745 P.2d 222 (Colo. 1987), the equal protection analysis concerned disparate penalties for the same or similar offenses involving the same or similar conduct, not the felony classifications attached thereto.

Here, defendant is not similarly situated with all other defendants convicted of a class four felony offense. The General Assembly has determined the severity of different offenses by setting forth the presumptive penalties for each felony class. See Smith v. People, supra. However, the felony classes do not themselves create "classes" for purposes of equal protection analysis. Rather, defendant is only "similarly situated" with defendants who commit the same or similar acts.

Consequently, the fact that sex offenders are subject to different provisions regarding parole raises no equal protection issue as to defendant, as he is not similarly situated.

Therefore, the trial court's order is affirmed.

Judge MARQUEZ and Judge ROY concur.


author: JUDGE MARQUEZ.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Serena HENDRICKSON, Defendant-Appellant.
    No. 00CA1024.
    Colorado Court of Appeals, Div. IL.
    Dec. 6, 2001.
    Certiorari Denied April 22, 2002.

      Ken Salazar, Attorney General, John D. Seidel, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.
    Springer and Steinberg, P.C., Harvey A. Steinberg, Stacey L. Ross, Denver, CO, for Defendant-Appellant.

       Justice BENDER and Justice COATS would grant as to the following issue:
      Whether a defendant should be entitled to have the jury instructed on the affirmative defense of entrapment when she admits all of the physical acts but denied the mental element of the of fense.

   Opinion by

JUDGE MARQUEZ.

Defendant, Serena Hendrickson, appeals a judgment of conviction entered on a jury verdict finding her guilty of one count of solicitation to commit first degree murder. We affirm.

In 1996, defendant's husband pled guilty to sexual assault on a child and aggravated incest. While incarcerated, defendant's husband learned of an inmate who purportedly could assist in setting up a murder for hire. He contacted that inmate regarding the murder of the prosecutor who handled his case. This inmate, unbeknownst to defendant's husband, had been assisting Department of Corrections (DOC) officials in discovering other inmates' plans to set up murders for hire. The inmate's main contact was a DOC investigator.

The investigator advised the inmate not to approach defendant's husband, but to keep him informed if defendant's husband pursued the plan. The inmate did not receive a sentence reduction for the information that he provided in this case.

Pursuant to DOC policy, the investigator later began to intercept correspondence and phone conversations between defendant and defendant's husband. Evidence was presented implying that defendant and her husband were devising a plan to kill her husband's prosecutor based upon the mistaken belief that her husband could be released from prison if they were successful.

Subsequently, the inmate received a note from defendant's husband stating: "I talked to my wife" and "she said the sooner the better ... her name is Serena." The note lists Serena's phone number and later states, "have him call my wife." The inmate passed the note on to the investigator, who, posing as a hit man, contacted defendant and her husband through notes and phone conversations. According to the investigator, in one phone conversation, defendant described the prosecutor in detail and agreed with the investigator on a price of $5000, with a vehicle as collateral. At the investigator's suggestion, defendant eventually met the investigator in a parking lot. They discussed how the investigator would do the killing, and defendant produced the unsigned title to the vehicle.

Defendant was charged with one count of solicitation of first degree murder and one count of conspiracy to commit first degree murder. The jury found her guilty only of the solicitation count. The trial court then sentenced her to a term of twelve years in the DOC.

L.

Defendant contends that the trial court's limitation on cross-examination of three government witnesses was prejudicial error. We disagree.

The right to confront witnesses against a criminal defendant is guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and includes the right to be given an opportunity for effective cross-examination. It is constitutional error to limit excessively a defendant's cross-examination of a witness regarding the witness' credibility. People v. Gholston, 26 P.3d 1, 8 (Colo.App.2000).

Nevertheless, the trial court has wide latitude to place reasonable limits on cross-examination based on concerns about such factors as confusion of the issues or interrogation that would be repetitive or only marginally relevant. People v. Gholston, supra, 26 P.3d at 8.

The trial court must exercise its discretion to preclude inquiries that have no probative value, are irrelevant, or are prejudicial. People v. Hanna, 981 P.2d 627, 630 (Colo.App.1998). To show that the court abused its discretion, a party must show that the court's decision was manifestly arbitrary, unreasonable, or unfair. People v. Gholston, supra, 26 P.3d at 8.

A. Cross-examination of "Informant Inmate"

During direct examination, the inmate admitted that he had four prior felony convictions. On cross-examination, defense counsel attempted to impeach the inmate regarding the convictions. The prosecution objected, and the trial court sustained the objection because each conviction had already been addressed on direct. The court explained to defense counsel, "If you want to question him as to something other than what he already said, you may." Defense counsel then proceeded to question the inmate about his age when he was convicted and the order in which he received the convictions. The defense also obtained an admission from the inmate that he had received a sentence reduction on one conviction in return for assistance on another murder for hire case.

Defendant has not demonstrated that the court's decision to preclude repetitive testimony regarding the prior felonies was manifestly arbitrary, unreasonable, or unfair. As such, we perceive no abuse of discretion. See People v. Gholston, supra.

B. Cross-examination of DOC Investigator

On direct examination, the investigator testified about the recorded phone conversations between defendant and her husband and those between the investigator and defendant. He also testified regarding his conversation with defendant in which he posed as a hit man in a parking lot.

During cross-examination, defense counsel attempted to draw the investigator's attention to particular portions of the transeript of his recorded conversation with defendant by having him read those portions aloud. The court repeatedly refused to allow him to do so, sustaining the prosecution's objection that the transcript spoke for itself.

Defendant contends that the trial court allowed the prosecutor to have defendant read portions of the transcript during her cross-examination and that the defense similarly should have been allowed to have the investigator read particular portions to demonstrate that he was in control of his conversation with defendant. We disagree.

The transcript was admitted into evidence and available for argument and the jury's scrutiny. Reading it aloud, therefore, would have been repetitive.

We thus conclude that the trial court did not abuse its discretion in limiting the cross-examination. See People v. Gholston, supra.

C. Cross-examination of the Prosecutor

The court refused to allow eross-ex-amination of the prosecutor of defendant's husband as to the validity of that prosecution, specifically, whether a defendant's blood relation to the victim was an essential element of incest. The court ruled that the definition of incest was irrelevant to the charges against defendant and collateral to the case at hand.

Defendant contends that cross-examination on this issue should have been permitted because it would have helped establish that defendant's "beliefs regarding her husband were sincere and well grounded." Again, we disagree.

Such beliefs are irrelevant to the question of defendant's guilt. The fact that the jury asked a question about incest between blood and nonblood relatives is also irrelevant. See People v. Woods, 931 P.2d 580, 536 (Colo. App.1996)(a trial court acts within its diseretion when it excludes evidence offered solely for impeachment purposes that will introduce collateral issues into the trial).

IL

Defendant also contends that she suffered prejudicial error when the court refused to grant her motion for a mistrial after the prosecution published several pages from a transeript to the jury, contrary to a prior agreement to redact the first six pages of the transcript. We disagree.

A mistrial is a drastic remedy that is warranted only when the prejudice to the accused is so substantial that its effect on the jury cannot be remedied by other means. Absent an abuse of discretion, a trial court's denial of a motion for mistrial will not be disturbed on appeal. People v. Scott, 10 P.3d 686, 689 (Colo.App.2000).

Here, prior to trial, the prosecution had agreed to redact the first six pages of the transcript of a taped telephone conversation that contained irrelevant but arguably prejudicial material. These pages contained a telephone conversation between defendant's husband and mother. However, that portion of the transcript was mistakenly published to the jurors before the prosecutor, in the jury's presence, asked that the tran-seripts be returned for editing.

Defendant moved for a mistrial because the transcript was not redacted and argued that retrieving it made it appear to the jury that the defense was hiding evidence.

The trial court denied the motion, finding that (1) the jurors had possessed the tran-seripts for only about three minutes; (2) jurors were still inserting them into their notebooks when the prosecutor asked that they be withdrawn; (8) the court had not seen any juror reading beyond the first page of the document; and (4) nothing in the first page of the document was so prejudicial that a mistrial was a "manifest necessity."

Further, the court gave a curative instruction, at defense counsel's suggestion, that the redacted information recorded a conversation between defendant's husband and someone other than defendant, that the parties had agreed that those pages were irrelevant, and that the jurors who had read any portion of the redacted pages should disregard them.

Our review of the first few pages of the transcript does not reveal them to be highly prejudicial. Although they contain some profanity and references to taking money under false pretenses, they do not clearly refer to defendant's crime. Under these cireum-stances, we perceive no abuse of discretion in the trial court's denial of a mistrial, especially in light of the curative instruction that was given. See People v. Dunlap, 975 P.2d 723, 744 (Colo.1999)(reviewing court presumes that jury understood and heeded jury instructions).

IIL

We also disagree with defendant's contention that the trial court erred in applying the "inconsistent defenses" rule to reject her tendered entrapment instruction.

A. Law of Entrapment

In Colorado, use of the entrapment defense is governed by § 18-1-709, C.R.8.2001, which provides:

The commission of acts which would otherwise constitute an offense is not criminal if the defendant engaged in the proscribed conduct because he was induced to do so by a law enforcement official or other person acting under his direction, seeking to obtain evidence for the purpose of prosecution, and the methods used to obtain that evidence were such as to create a substantial risk that the acts would be committed by a person who, but for such inducement, would not have conceived of or engaged in conduct of the sort induced. Merely affording a person an opportunity to commit an offense is not entrapment even though representations or inducements calculated to overcome the offender's fear of detection are used.

Under § 18-1-710, C.R.S.2001, entrapment is an affirmative defense. People v. Sprouse, 983 P.2d 771, 775 (Colo.1999).

An affirmative defense instruction is one in which the defendant admits the doing of the act charged but seeks to justify, exeuse, or mitigate it. People v. Huckleberry, 768 P.2d 1235, 1238 (Colo.1989); People v. Mossmann, 17 P.3d 165, 169 (Colo. App.2000); People v. Whatley, 10 P.3d 668, 670 (Colo.App.2000). To entitle a defendant to such an instruction, the supporting evidence must tend to establish each of the elements of the defense. People v. Dooley, 944 P.2d 590, 595 (Colo. App.1997).

Once a defendant introduces some credible evidence of an affirmative entrap ment defense, the prosecution must prove beyond a reasonable doubt that the defendant was not entrapped. People v. Sprouse, supra, 983 P.2d at 775; Evans v. People, 706 P.2d 795, 800 (Colo.1985).

The entrapment statute creates a subjective test that focuses on the state of mind of a particular defendant, and it does not set a general standard for police conduct. The existence of any predisposition on the part of the defendant must be determined first, then the extent of any such predisposttion must be considered in relation to the character of the inducements,. People v. Sprouse, supra, 983 P.2d at 776.

Entrapment may be asserted as an affirmative defense only to the commission of acts that would otherwise constitute an offense. Vega v. People, 893 P.2d 107, 111 (Colo.1995).

In the overwhelming number of cases, resolution of the entrapment defense is properly reserved for the jury. People v. Sprouse, supra, 983 P.2d at 776; see Bailey v. People, 630 P.2d 1062, 1065 (Colo.1981)(entrapment is an affirmative defense to be submitted to the jury).

B. Trial Court Ruling

At the close of evidence, defendant submitted instructions on an entrapment defense. Defendant argued that the conduct may have occurred as set forth in the evidence by the prosecution, but the culpable mental state did not exist, and her actions were the result of government entrapment. Thus, defendant argued that her conduct was the result of the opportunity given by the government. The prosecution responded that defendant's position was a general denial defense and that defendant did not admit the actions as required.

The trial court made no rulings on inducement or predisposition. Rather, the court agreed with the prosecution and held that the entrapment defense, as codified, assumes that an offense occurred. Therefore, the court reasoned, the defense did not apply because defendant denied that any crime was committed.

Specifically, the court explained that:

because of the language of the statute and the interpretation as in [Bailey v. People, supra l it appears to me that this is a traditional confession and avoidance defense, which is the defendant saying yes, I committed the crime, but the government made me do it. In this case there is no initial confession. In fact, the defendant has denied and all witnesses who have testified on her behalf have denied that she committed any offense. Without the confession, there is no avoidance because she is denying that she committed a criminal offense. So I will not be giving the tendered instructions.

C. Inconsistent Defenses

Citing Paul Marcus, The Entrapment Defense § 6.18 (2d ed. 1995), defendant acknowledges that the inconsistent defenses rule traditionally held that the entrapment defense could not be raised unless the defendant admitted the crime.

Nevertheless, defendant contends that, under Mathews v. United States, 485 U.S. 58, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988), the United States Supreme Court and a majority of state courts have rejected the "inconsistent defenses" rule. Thus, according to defendant, the issue of entrapment should have been submitted to the jury. We are not persuaded.

Mathews provides that even if the defendant denies one or more elements of the crime, the defendant is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment.

However, as the defense of entrapment is not of constitutional stature, Colorado is free to define it as it chooses. People v. Sprouse, supra, 983 P.2d at 775-76.

Because entrapment is an affirmative defense, it does not apply where a defendant denies committing the crime. See People v. Sprouse, supra; People v. Huckleberry, supra; People v. Mossmann, supra. Thus, we view the rule in Colorado to require a defendant to admit committing acts that would otherwise constitute an offense before being entitled to assert an affirmative defense of entrapment.

As a preliminary matter, contrary to defendant's assertion, it does not appear that the Mathews rule has been accepted by the majority of courts addressing the issue. See Timothy E. Travers, Annotation, Availability in State Court of Defense of Entrapment Where Accused Denies Committing Acts Which Constitute Offense Charged, 5 AL RAth 1128 (1981)(referencing twenty-four states adopting the view that a defense of entrapment is not available to an accused who denies committing the acts which constitute the offense charged, and nine states holding the opposite).

Further, other states have rejected Mathews as not based on a constitutional analysis, but on "federal common law" and "general propositions." See State v. Abrams, 164 Ariz. 185, 791 P.2d 1068, 1069 (Ct.App.1990), aff'd sub nom. State v. Soule, 168 Ariz. 134, 811 P.2d 1071 (1991); People v. Gillespie, 136 Ill.2d 496, 145 Ill.Dec. 915, 557 N.E.2d 894, 897 (1990); Moreno v. State, 860 S.W.2d 612, 615 n. 2 (Tex.Ct.App.1993). See also Vega v. Suthers, 195 F.3d 573, 588 (10th Cir.1999)(defense of entrapment is not of constitutional dimension).

In People v. Penson, 184 Colo. 256, 258, 520 P.2d 110, 111 (1974), a case in which the defendant denied committing the offense, the supreme court stated that "while [a defendant] should not be required to admit guilt to obtain [an entrapment] instruction, his theory of entrapment must be supported by some evidence of instigation of the offense by the officer." However, the question of inconsistent defenses was not an issue in that case, and the statement appears to be dictum. The court went on to say that there was no such evidence in the case, and the decision there turns on the defendant's failure to present any evidence of entrapment.

People v. Penson also predates Mathews and has never been cited by any other reported case in Colorado, including the more recent decision in People v. Sprouse, supra. Further, the statutes and subsequent cases in Colorado addressing entrapment assume the defendant admits committing acts that would constitute the offense.

Section 18-1-709 presupposes the commission of acts that would constitute an offense. The statute thus includes phrases such as "[the commission of acts which would otherwise constitute an offense," "if the defendant engaged in the proscribed conduct," "would not have ... engaged in conduct of the sort induced," and "[mJerely affording a person an opportunity to commit an offense."

The supreme court in 1985 determined that the entrapment defense consisted of the following elements:

(1) the defendant must be a person who, but for the inducement offered, would not have conceived of or engaged in conduct of the sort induced, (2) the defendant must in fact have engaged im the proscribed conduct because he was induced to do so by a law enforcement official or other person acting under his direction, seeking to obtain evidence for the purpose of prosecution, and not as a result of the defendant's own predisposition, (3) the methods used to obtain such evidence must have been such as to create a substantial risk that this particular defendant would engage in the sort of conduct induced, and (4) the methods used must have been more persuasive than merely affording the defendant an opportunity to commit an offense, even when such an opportunity was coupled with representations or inducements calculated to overcome the defendant's fear of detection.

Evans v. People, supra, 706 P.2d at 799 (emphasis added). These instructions were given without objection in People v. Sprouse, supra, 983 P.2d at 771 n. 2. See CJI Crim. 7:10 (1993).

Moreover, Colorado Supreme Court cases subsequent to Mathews have consistently applied the rule that an affirmative defense instruction is one in which the defendant admits doing the act charged, but seeks to justify, excuse, or mitigate it. See People v. Huckleberry, supra.

Nor does People v. Mattas, 645 P.2d 254 (Colo.1982), upon which defendant relies, support defendant's position. In Mattas, the trial court gave an involuntary intoxication instruction even though the defendant denied he was the person who committed the crimes. However, because the defendant did not object to the instruction, offer a substitute at trial, or include the asserted error in his motion for new trial, on appeal the supreme court did not consider the appropriateness of the instruction.

We conclude, therefore, that a defendant must admit having engaged in the proscribed conduct to be entitled to an entrapment instruction. See Evans v. People, supra.

D. Defendant's Conduct

On appeal, defendant concedes meeting with the investigator, discussing the $5000 contract price, and tendering her vehicle as collateral, but denies any criminal intent. However, defendant testified at trial and essentially denied engaging in any wrongdoing. While she did not deny meeting the investigator or providing him with the unsigned title to the vehicle, she testified she did not actually mean to hire a hit man, that she did not believe there ever was a hit man, and that the investigator was not a real hit man. In response to a question whether she ever wanted to have the district attorney killed, she responded that she did not, but rather wanted him to be in trouble for what he had done. She also testified she provided an unsigned title that was no good, that she believed she was being "set up" by DOC, that she had no plan to kill the district attorney, and that she and her husband were just "playing along."

Under these cireumstances, we conclude that defendant's denial of wrongdoing precluded an instruction on entrapment. See Bailey v. People, supra; People v. Whatley, supra.

IV.

Defendant further contends that, when the jury allegedly indicated it was at an impasse, the trial court erred by failing to inquire whether further deliberations would be fruitful and by improperly instructing the jury regarding further deliberations. We are not persuaded.

When a defendant actively participates in the preparation of a response to the jury, or expressly agrees to it, he or she is prevented from asserting error with respect to the response. People v. Bielecki, 964 P.2d 598, 608 (Colo.App.1998).

Here, the court conferred with counsel about each response to three notes from the jury. Defense counsel agreed with each of the court's responses to the notes. Accordingly, defendant cannot now complain that the responses were improper.

On the first full day of deliberations, the trial court received a note from a juror indicating that the juror wanted to talk to "somebody who knows the rules of jury" and had not been given all the information about a juror's role, and asking "what if a juror feels trapped." The trial court proposed responding with a stock response entitled "Questions during Deliberations." Defense counsel agreed to the trial court's response.

The jury sent a second note about two hours later. The note indicated that the juror desired to be exeused and that all twelve jurors wanted to have the alternate. The trial court responded that a jury consists of all twelve persons and that the alternate had been excused and was not available. Again, the defense did not object.

Less than an hour later, the jury sent a third note. It indicated that one juror was "not responding to our questions or discussing the situation," had admitted to having "no respect for the law," and was "not following instruction." The note did not state the jury was at an impasse. The court proposed to instruct the jury that it could not answer or respond to the note. Defense counsel did not object, and, shortly thereafter, the jury reached its verdict. After the reading of the verdicts, the court polled the jury at defense counsel's request. All jurors responded affirmatively to the question whether what the court had read represented the verdicts.

Defendant moved for a mistrial, claiming that deliberations had broken down and the trial court should have intervened. The court denied defendant's motion, pointing out that defendant had agreed to each response given. Because of defendant's agreement with the responses, we agree with the trial court.

Further, the modified Allen instruction, which defendant contends that the trial court should have given, is not mandatory under these circumstances. The instruction applies when "deliberations have been somewhat lengthy without a verdict being reached." CJI Crim. 38:14 (1983)(emphasis added). Here, the jury had deliberated only about three hours at the time of the third note and completed its deliberations only a few hours later.

Accordingly, we perceive no abuse of discretion in the trial court's failure to provide the instruction.

The judgment is affirmed.

Judge PLANK and Judge ROY concur.


author: Judge NIETO.

text:
    Richard N. LEE and Marsha A. Lee, Defendants-Appellants, v. Charles MASNER, Clotene Masner, Stan Park, Jaylene Park, Joe Zanin, and Judith Zanin, Intervenors-Appellees.
    No. 99CA2146.
    Colorado Court of Appeals, Div. V.
    Dec. 20, 2001.
    Rehearing Denied March 14, 2002.
    Preco Silverman Green & Egle, P.C., Eldon E. Silverman, Denver, CO, for Defendants-Appellants.
    Wilderson, O'Hayre & Dawson P.C., Rufus O. Wilderson, Gunnison, CO, for Interve-nors-Appellees.
   Opinion by

Judge NIETO.

In this dispute concerning access to a road, defendants, Richard N. Lee and Marsha A. Lee, appeal a judgment, entered after a trial to the court, in favor of intervenors, Charles Masner, Clotene Masner, Stan Park, Jaylene Park, Joe Zanin, and Judith Zanin (collectively Masners). The trial court found that a road crossing the Lees' property was a public road. We affirm.

The action was commenced by Rudolph and Mary Volk. While the case was pending, they sold their ranch to the Masners, who intervened in the case. The Volks are not parties to this appeal.

The Lees own a ranch adjacent to and south of the Masners' ranch. The Masners' predecessors in title, the Volks, had accessed their property for decades by passing through a gate on the Lee ranch and traveling across a road on the Lee ranch. In 1997, the Lees refused access to hunters who had been authorized by the Volks to come onto the Volks' ranch.

The Volks then filed this action. After the Masners intervened in the case, they filed a third-party complaint asserting that the access road was a public highway, that they had an implied easement by necessity, and that they had an easement by prescription. The Masners prevailed on the public road claim, but the trial court did not rule on the other claims.

The trial court found that the road in question was a public road pursuant to "R.S. 2477," a federal statute that has since been repealed. That federal statute provided that "Itlhe right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted." Act of July 26, 1866, ch. 262, § 8, 14 Stat. 251, 258 (1866)(formerly codified at 48 U.S.C. § 932)(repealed by 48 U.S.C. § 1769). The repealing act specifically provided that it would not have the effect of terminating any right-of-way previously permitted.

The supreme court has held that R.S. 2477 was an express dedication of roads over public land where the roads were established by public use. The use necessary to establish the road can be very limited, and "if the use be by only one, still it suffices." Leach v. Manhart, 102 Colo. 129, 133, 77 P.2d 652, 653 (1988). However, the road must be established before the government land is withdrawn from the public domain. Korf v. Itten, 64 Colo. 8, 169 P. 148 (1917).

Therefore, the critical issue here is the date the Lees' property was removed from the public domain and appropriated to a private use.

The following facts concerning Lees' property were undisputed. John Bear, who obtained the original patent on the land by homesteading it, first entered the land in 1911 or 1912 and continuously lived on it until the patent issued in 1982. The road was established by Bear in 1919, and it was used by the public thereafter. Bear did not apply for homestead rights until he signed the Homestead Entry form on September 26, 1924. The form was certified in the United States Land Office on November 28, 1926.

By applying the doctrine of relation back, the trial court found that the property was removed from the public domain when the homesteader's Homestead Entry form was certified in the Land Office in 1926, a date after the road was established. Therefore, the trial court concluded that, because the road was used by the public before 1926, it was a public road pursuant to R.S. 2477.

L.

The Lees contend that the trial court erred in applying the doctrine of relation back. They argue that under the doctrine title relates back to the time the homesteader first took possession of the land. We disagree.

Colorado has long recognized the relation back doctrine in the context of rights in land acquired through federal homestead law. In a case involving rights in land during the time between a homestead entry and issuance of a patent, the supreme court said: "It is settled law that one who has obtained a patent for land entered by him has a title which relates back to his entry...." Scott v. Buchanan, 64 Colo. 571, 573, 174 P. 1123, 1124 (1918).

A division of this court has explained the relation back doctrine in the context of a patentee's rights in land:

Moreover, one who has obtained a patent for land has a title which relates back to the first qualifying act which definitively located the boundaries of the claimed land so as to legitimately bar others from entry. Hence, a patent, when issued, relates back to the date of the inception of the rights of the patentee in the land.

Board of County Commissioners v. Ritchey, 888 P.2d 298, 301 (Colo.App.1994) (citations omitted). The division held that, although the railroad did not obtain the patent from the federal government until 1896, the property was removed from the public domain before 1887 when the railroad filed a map locating the property, an act sufficient to identify the property for purposes of the federal law granting the property to the railroad.

The term "entry," as used in the context of acquisition of rights in land under federal homestead law, means: "An entry under the United States land laws for the purpose of acquiring title to a portion of public domain under the homestead laws, consisting of an affidavit of the claimant's right to enter, a formal application for the land, and payment of the money required." Black's Law Dictionary 627 (4th ed.1957).

In 1866, the Supreme Court used the term "entry" in a manner consistent with this definition: "The children ... {were] allowed to enter the lands in controversy. The proper certificate of this donation entry, as it is called, was transmitted, as is usual in land entries, to the General Land Office at Washington. ..." Witherspoon v. Duncan, 71 U.S. (4 Wall.) 210, 210, 18 L.Ed. 339, 842 (1866). The Court went on to hold:

In no just sense can lands be said to be public lands after they have been entered at the land office and a certificate of entry obtained. If public lands before the entry, after it they are private property....
[I]f the party is entitled by law to enter the land, the receiver gives him a certificate of entry reciting the facts, by means of which, in due time, he receives a patent. The contract of purchase is complete when the certificate of entry is executed and delivered, and thereafter the land ceases to be a part of the public domain.

Witherspoon v. Duncan, supra, 71 U.S. (4 Wall.) at 218, 18 L.Ed. at 342.

The Colorado Supreme Court has also ree-ognized this same definition of "entry" in homestead matters:

But a homesteader, after entry, occupies an entirely different position. He has in fact purchased. His entry, which is made by making and filing an affidavit and paying the sum required by law, is a contract of purchase which gives him an inchoate title to the land, which is property.

Korf v. Itten, supra, 64 Colo. at 7-8, 169 P. at 150 (quoting Stofferan v. Okanogan County, 76 Wash. 265, 136 P. 484 (1913)).

Accordingly, we conclude that a homesteader's rights in land patented by him relate back to the time the homestead entry is properly filed with the appropriate government office.

Here, it is undisputed that John Bear executed his homestead entry on September 26, 1924, and that it was certified in the United States Land Office on November 28, 1926. We need not decide which of these dates constitutes the date of John Bear's homestead entry because both are subsequent to the establishment of the road on property that was then public land.

IL.

The Lees also contend that, because the Masners were aware of the uncertain status of the road when they purchased the property, their claims are precluded as a matter of law by the doctrines of self-imposed hardship and estoppel. We are not persuaded.

The Lees argue that, as a general principle of Colorado law, a party who creates his or her own hardship is precluded from seeking redress from the courts, The Lees have cited no authority, and we are aware of none, holding that self-imposed hardship is an absolute prohibition against seeking relief. The cases cited by the Lees all hold that self-imposed hardship is a factor to consider, but none recognizes it as an absolute prohibition. See Coquina Oil Corp. v. Harry Kourlis Ranch, 643 P.2d 519 (Colo.1982); Nirk v. City of Colorado Springs, 174 Colo. 273, 483 P.2d 371 (1971); Madis v. Higginson, 164 Colo. 320, 434 P.2d 705 (1967); Le Satz v. Deshotels, 757 P.2d 1090 (Colo.App.1988)

Also, while the Lees contend that the Mas-ners' claims are barred by the doctrine of estoppel, they do not make any specific argument concerning this doctrine or its application here. Therefore, we reject the argument. See Westrac, Inc. v. Walker Field, 812 P.2d 714 (Colo.App.1991)(counsel must inform the court as to the specific errors relied upon, supporting facts in the record, and legal authority supporting the claims of error).

Accordingly, we perceive no error in the trial court's decision to address the Masners' Claims.

The judgment is affirmed.

Judge TAUBMAN and Judge KAPELKE °°°°4"- <_, .