author: Justice MARTINEZ

text:
    The PEOPLE of the State of Colorado, Petitioner, v. Stephen MARTINEZ, Respondent.
    No. 02SC152.
    Supreme Court of Colorado, En Banc.
    June 30, 2003.
    Rehearing Denied Aug. 18, 2003.

      Ken Salazar, Attorney General, Katharine J. Gillespie, Assistant Attorney General, Denver, Colorado, Attorneys for Petitioner The People of the State of Colorado.
    David S. Kaplan, Colorado State Public Defender, Alan Kratz, Denver, Colorado, Attorneys for Respondent Stephen Martinez.
    Colorado District Attorneys' Council, Miles Madorin, Denver, Colorado, Attorneys for Amicus Curiae Colorado District Attorneys' Council.
    J. Wallace Wortham, Jr., Denver City Attorney, Laura Grzetic Eibsen, Assistant City Attorney, Denver, Colorado, Attorneys for Amicus Curiae Denver Department of Human Services.
    H. Patrick Furman, Boulder, Colorado, Attorney for Amicus Curiae Colorado Criminal Defense Bar.

       Justice COATS does not participate.

   Justice MARTINEZ

delivered the Opinion of the Court.

A jury convicted Stephen Martinez of murder in the first degree for knowingly killing Heather Mares, a child under the age of twelve in his care. Martinez violently shook four month-old Heather and slammed her head on the edge of her crib, resulting in her death. Two experts for the prosecution, Dr. Ann Martin and Dr. Patty Rosquist, explained Heather died from blunt force trauma to the head resulting from shaken-impact syndrome -a vigorous shaking and sudden deceleration of the brain as it strikes an object. The syndrome is characterized by a constellation of injuries, including a subdural hematoma, a collection of blood between the brain and skull. Both experts testified that massive, violent force causes subdural hema-tomas, and the defense did not contest that testimony.

However, over the defense's objections on the basis of relevance, Dr. Rosquist further testified that babies only suffer subdural he-matomas in limited situations such as shaken-impact syndrome or in specific accident scenarios: falls from several-story buildings or in high-speed automobile accidents. The prosecution introduced the accident seenario evidence for two purposes: (1) to give a frame of reference to the impact required to cause a subdural hematoma and; (2) to provide a basis of the expert opinion that massive, violent force causes a subdural he-matoma. In rebuttal closing argument, the prosecution, citing Dr. Rosquist's testimony, claimed that the force Martinez used in shaking and slamming Heather was equivalent to that of the accident seenarios.

The court of appeals reversed Martinez's conviction because it found the disputed evi-denee inadmissible as it was not probative of the minimum foree Martinez may have used for purposes of proving that he knowingly killed Heather. People v. Martinez, 51 P.3d 1046, 1051 (Colo.App.2001). The court of appeals did not evaluate whether the evidence was admissible as the basis of Dr. Rosquist's opinion that subdural hematomas result from massive, violent force.

We granted certiorari to consider the prosecution's argument that the court of appeals misapplied this court's decision in People v. Shreck, 22 P.3d 68 (Colo.2001): Dr. Rosquist need not describe the minimum force necessary to cause subdural hematomas in shaken-impact syndrome for testimony regarding accident scenarios to be admissible for the purpose of proving Martinez's mens rea. We agree that the standard of admissibility for CRE 702 is reliability and relevance, not certainty.

We evaluate the admissibility of accident scenario evidence under CRE 702 and CRE 403 and in the context for which it is offered. Like the court of appeals, we also find Dr. Rosquist's accident seenario testimony irrelevant to the question of Martinez's mens rea, but not for the reason the court of appeals articulated; rather we find it inadmissible as a frame of reference because Dr. Rosquist did not show how the accident seenarios relate to shaken-impact syndrome.

Nevertheless, the testimony of accident scenarios is admissible under CRE 702 and CRE 403 as the basis of Dr. Rosquist's opinion that a subdural hematoma results from massive, violent force. Assuming that Dr. Rosquist was qualified and her opinion was reliable, we find her testimony was helpful to the jury's understanding of subdural hemato-mas. Finally, we do not find an abuse of discretion in the trial court's weighing of the probative and prejudicial value of the evidence in dispute. Accordingly, we reverse the court of appeals.

I. FACTS AND PROCEDURE

A jury convicted Stephen Martinez of murder in the first degree for knowingly causing the death of a child who had not yet attained twelve years of age and the person committing the offense was in a position of trust with respect to the child, pursuant to section 18-6-401(7)(c), 6 C.R.S. (2002). While under Martinez's care, Heather Lynn Mares, a four-month old baby, suffered injuries that ultimately led to her death. Martinez is not Heather's father, but was the live-in partner of Heather's mother, Kim Velverde.

In October 1998, while Velverde left Heather with Martinez for fifteen minutes to run a quick errand, Heather began to ery. In response to her incessant crying, Martinez shook Heather hard, and while shaking her, hit the back of her head on her crib. Vel-verde returned to find Heather being carried to an ambulance parked outside of her home. She was limp and purple. Later that evening, Heather died. Her injuries included a complex skull fracture and two linear bruises on the back of her head; subarachnoid bleeding, bleeding on the surface of the brain; a subdural hematoma, a localized three-dimensional mass of blood between the brain and the skull; and bilateral retinal hemorrhages.

Martinez maintained, in a 911 emergency phone call, in a written statement to an investigating officer, and in a videotaped interrogation, that Heather had suddenly started to choke. In the videotaped interrogation, Martinez explained that Heather's head injuries could have resulted from an accident two weeks earlier in which both he and Heather had fallen together onto the kitchen floor after he tripped on a telephone cord. Prodding by the interrogating officer led Martinez to finally confess that he had shaken Heather hard and hit her head on her crib. In demonstrating to the interrogating officer how he shook Heather, using a doll, Martinez depicted only a light shaking. He also stated that he had never heard of shaken baby syndrome, but responded affirmatively to the interrogating officer's questions, "Do you think it's dangerous to shake a little tiny baby? ... So your action was dangerous in and of itself?"

A. The Jury Trial

At trial, the only material fact at issue was Martinez's - culpability, and - specifically, whether he shook Heather knowing that his actions were practically certain to cause her death. See § 18-1-501(6), 6 C.R.S. (2002) ("A person acts 'knowingly' ... with respect to a result of his conduct, when he is aware that his conduct is practically certain to cause the result."). The defense strategy focused on the fragility of babies, that Martinez only shook Heather with minimal force, and that Heather's head accidentally hit the crib during the shaking. Since only minimal force was used and because babies are fragile, the defense maintained it was impossible for Martinez to know that his actions could lead to her death.

In contrast, the prosecution argued that Martinez, in shaking and slamming Heather, used such massive and violent force that he was practically certain his conduct would cause Heather's death. The prosecution sought to admit evidence on the amount of force used to cause shaken-impact syndrome through the testimony of a deputy coroner, Dr. Ann Martin, who performed Heather's autopsy and the testimony of a pediatrician, Dr. Patty Rosquist.

Both experts demonstrated using a doll the biomechanics and amount of foree required in shaken-impact syndromes. In comparison to the shaking and impact that Martinez demonstrated on his videotaped interrogation, Dr. Martin found his demonstration "not sufficient ... not close" to the conduct required to cause Heather's injuries. Dr. Rosquist similarly stated that Martinez's demonstration was inconsistent with the amount of force required to cause the constellation of injuries that Heather suffered.

Both experts also testified that a subdural hematoma, one of the injuries that Heather incurred, requires massive, violent force. The defense did not contest that assertion. When the prosecutor sought further explanation of "massive, violent force" through other real-life accident seenarios, the defense objected on the basis of CRE 403 stating that it was misleading and irrelevant. The prosecutor argued that the evidence was offered to provide the jury with a frame of reference regarding the force Martinez used: It would show jurors "the sort of impact we're talking about." The trial court sustained the defendant's objection based solely on the form of the prosecutor's question, but stated that it would "let the prosecution go into the area of how much force is required to cause this injury." The prosecution was unsuccessful in admitting accident scenario evidence through Dr. Martin.

The prosecution again attempted to introduce accident scenario testimony through Dr. Rosquist. The defense objected again, and the prosecution argued that the evidence served as the basis for the doctor's opinion that subdural hematomas result from massive, violent force and that it provides the jury with a frame of reference. The trial court ultimately allowed the testimony.

Thus, Dr. Rosquist testified that a subdural hematoma rarely occurs and does so only in limited situations: where a baby falls from a several story building; in a high-speed motor vehicle accident either as a pedestrian or where the baby is unrestrained; or when a baby is violently shaken or violently shaken and slammed. However, Dr. Rosquist also testified that the amount of force necessary to cause a subdural hematoma via shaking-impact syndrome is unknown, because obviously no such experiments on babies can be conducted and perpetrators are less than honest about the force employed.

DR. ROSQUIST: In talking about how much force that it requires to cause this kind of injury, we can't take babies and shake them and do that for the obvious reason, so what we have to do is take-there have been multiple studies of series of witnessed falls or witnessed accidents where babies had similar kinds of injuries. Okay? And in those studies, babies who had similar kinds of injuries, the subdural hematoma, have been things like a fall from a multiple story building. Being in a high speed motor vehicle accident either as a pedestrian hit by a high speed motor vehicle or, for example, an unrestrained passenger in a high speed motor vehicle accident, so those are the kinds of witnessed injuries that can lead to a similar sort of injury.

Notably absent from Dr. Rosquist's testimony is whether Martinez did, or did not, use force equivalent to the described accident scenarios. Furthermore, the limit of the doctor's testimony is apparent: other than the similarity of one injury-subdural hemato-ma-she did not link, via biomechanics or the amount of foree required, shaken-impact syndrome to the accident seenarios.

In rebuttal closing argument, the prosecution concluded from Dr. Rosquist's testimony that Martinez used force equivalent to that described in the accident seenarios. The jury was offered instructions on first degree, knowing murder of a child by a person in a position of trust; child abuse resulting in death (reckless); child abuse resulting in death (negligence); manslaughter; and criminally negligent homicide. The jury returned a verdict of murder in the first degree, finding Martinez, in a position of trust, had knowingly killed four-month old Heather Mares.

B. The Appeal

Martinez appealed to the court of appeals, asserting in part that the district court violated Martinez's constitutional right to a fair trial by admitting expert testimony of accident scenarios as proof that Martinez used an equivalent degree of force. The court of appeals agreed, applying the test we announced in People v. Shreck, 22 P.3d 68 (Colo.2001) to determine whether the accident scenarios were admissible, and reversed the conviction. People v. Martinez, 51 P.3d 1046, 1048, 1050 (Colo.App.2001).

In Shreck, we announced the seope of the inquiry of admissibility of expert testimony on scientific evidence. Specifically, we described CRE 702's reliability and relevance prongs. Id. at T7. Expert scientific testimony is reliable if (1) the scientific principles are reliable; and (2) if the witness is qualified to opine on those scientific principles. Id. As to relevance, a trial court must evaluate whether the testimony would be helpful to the jury. Id. The liberal approach in admitting evidence is tempered by CRE 408 which gives a court discretion to exclude expert testimony where its probative value would be substantially outweighed by unfair prejudice. Id. at 79.

In this case, the court of appeals found that the accident scenarios did not meet the relevancy prong and additionally that it must be excluded under CRE 408 because, as to the announced purpose, to establish the force necessary to cause a subdural hematoma, it was highly prejudicial and likely to confuse or mislead the jury. Martinez, 51 P.3d at 1050.

The court of appeals used a syllogism to establish that through the use of these observed extreme accident seenarios, the prosecution had ignored the undistributed middle: "(ilt is one thing clearly to state that a certain quantum of force is necessary to produce a subdural hematoma; it is quite another to use examples of obviously extreme forces and violence that have been demonstrated to have caused subdural hematomas and then suggest that they constitute the minimum force necessary to cause such an injury in any particular case." Id. at 1051. Because reasonable inferences could not be drawn, the court of appeals stated that the observed accident scenarios testimony was not probative on the issue of the foree Martinez used and consequently the mens rea he possessed while shaking Heather. Id.

Combined with the prosecutor's allusion to the expert's testimony in rebuttal closing argument, the court of appeals held that the admission of the evidence was not harmless, reversed the conviction and remanded for a new trial Id. In summary, the court of appeals held that the accident scenario evidence did not help the jury understand the minimum force Martinez may have used to cause a subdural hematoma, and therefore, its unfair prejudicial value substantially outweighed its probative value.

II. ADMISSIBILITY OF DR. ROS-QUIST'S TESTIMONY OF OBSERVED ACCIDENT SCENARIOS

The prosecution states that the court of appeals misapplied the Shreck test for admissibility of expert evidence when it deemed Dr. Rosquist's testimony of observed accident scenarios irrelevant and lacking any probative value. We agree that the standard for admissibility is relevance and reliability, not certainty. In particular, we would find that Dr. Rosquist need not testify to the minimal force required to cause a subdural hematoma for observed accident scenarios to be admissible as the basis of her opinion that subdural hematomas result from massive, violent force. Therefore, because the disputed testimony satisfies CRE 702 and CRE 403, we find that the trial court did not abuse its discretion in admitting Dr. Rosquist's testimony.

A. Standard of Review

Trial courts are vested with broad discretion to determine the admissibility of expert testimony, and the exercise of that discretion will not be overturned unless manifestly erroneous. Masters v. People, 58 P.3d 979, 988 (Colo.2002). A trial court has a superior opportunity to determine the competence of the expert as well as assess whether the expert's opinion will be helpful to the jury. Id. However, we have channeled a trial court's discretion through the test announced in Shreck: (1) the scientific principles underlying the testimony must be reasonably reliable; (2) the expert must be qualified to opine on such matters; (8) the expert testimony must be helpful to the jury; and (4) the evidence must satisfy CRE 403. Shreck, 22 P.3d at 77, 79. Although the trial court here did not have the guidance of Shreck because that opinion was released after the jury trial in this case, we review the admissibility of Dr. Rosquist's testimony pursuant to Shreck,. Specifically, we examine whether the trial court abused its discretion under either CRE 702 or CRE 403.

B. Colorado Rules of Evidence Germane to Inquiry on Admission of Scientific Expert Testimony: CRE 401, CRE 402, CRE 403 & CRE 702

"[UJInless otherwise provided by constitution, statute, or rule, all relevant evidence is admissible." People v. Rath, 44 P.3d 1033, 1038 (Colo.2002) (citing CRE 402). "Evidence is relevant, in the logical sense, as long as it is 'evidence having 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'" Id. (quoting CRE 401). However, relevant evidence must be excluded, if "its probative value is substantially outweighed by the danger of unfair prejudice." Id. (quoting CRE 403). Thus, while CRE 401 and CRE 402 reflect liberal admission of evidence, CRE 403, in conjunction with CRE 702, tempers broad admissibility by giving courts discretion to exclude expert testimony unless it passes more stringent standards of reliability and relevance.

CRE 702 and CRE 403 govern the admissibility of expert testimony. Masters v. People, 58 P.3d 979, 988 (Colo.2002) (citing People v. Shreck, 22 P.3d 68, 70 (Colo.2001)). CRE 702 addresses relevancy and reliability issues and states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

In applying Shreck, we assume, as it is not in dispute, that the scientific principles of shaken-impact syndrome and subdural hema-tomas resulting from extreme accidents are reasonably reliable. Further, we assume that Dr. Rosquist, as an expert was qualified to opine on such matters. Given the above assumptions, we address whether the expert testimony is helpful to the jury in either understanding other evidence in the case or helping the jury resolve a factual issue in this case. Finally, we discuss whether in spite of the helpful nature of the testimony, the testimony should nevertheless be excluded because the evidence's probative value is substantially outweighed by unfair prejudice completing the CRE 702 and CRE 403 analysis.

C. Whether the Evidence Was Useful to the Jury

The testimony at issue here is Dr. Rosquist's description of accident seenar-ios which result in subdural hematomas, an injury that also occurs in shaken-impact syndrome. Helpfulness to the jury hinges on whether the proffered testimony is relevant to the particular case: whether it "fits." Fit demands more than simple relevance; it requires that there be a logical relation between the proffered testimony and the factual issues involved in the litigation. In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 743, 745 & n. 13 (3d. Cir.1994). That is, even if good grounds exist for the expert's opinion, it must be validly and scientifically related to the issues in the case. Id. That particular expert testimony fits or is valid for one facet or purpose of a proceeding does not necessarily compel the conclusion that it fits all facets. Therefore, the admissibility of evidence must be evaluated in light of its offered purpose. People v. Saiz, 82 P.3d 441 (Colo.2001) (abuse of the court's discretion in determining admissibility of evidence considered in light of its offered purpose).

The prosecution's proffered reasons during trial for admitting the testimony were (1) to provide a frame of reference for the jury for the impact required to cause a subdural he-matoma; and (2) to show the basis of the expert's opinion that a subdural hematoma is only caused by massive, violent force. We review the testimony with reference to the purposes for which it was offered to the trial court.

1. Accident Testimony as Basis of Dr. Rosquist's Opinion

We address the second proffered reason first because we would find the accident scenarios admissible for that purpose.

At trial, the defense did not contest the testimony that subdural hemato-mas result from massive, violent force. The accident scenario evidence supported Dr. Rosquist's expert opinion that subdural hematomas result from such force. The basis is sound because it is based on empirical data, and under CRE 702, the expository information assists the jury in better understanding the nature of a subdural hematoma: that it cccurs only in a few known situations. Similarly, the jury understands that a simple fall is unlikely to cause a subdural hematoma.

Generally, the factual basis of an expert opinion is admissible, and cross-examination should reveal the weaknesses in its underpinnings. Here, Dr. Rosquist conceded the limitation of her opinion that she did not know the amount of force required to cause a subdural hematoma in shaken-impact syndrome. Defense counsel, in cross-examining Dr. Rosquist, compelled her to clarify that one could not quantify the amount of shakes required to cause a subdural hematoma and that all sorts of body types and strengths could cause this result. At no time did Dr. Rosquist pronounce that Martinez used force equivalent to that described in the accident scenarios.

Because Heather suffered a subdural he-matoma, and because it is undisputed that massive, violent force causes it, the expert's testimony as to basis of her opinion helped the jury understand the facts of this case. Therefore, we find that Dr. Rosquist's testimony satisfies CRE 702 for the purpose of serving as the basis of her opinion.

2. Accident Scenarios as Frame of Reference

A frame of reference is a portal through which the evidence in a case must be viewed and understood. As such it delimits the boundaries of testimony, and is a much narrower concept than the basis of an expert's opinion.

The validity and fit of a framework must be examined under the province of CRE 702. Generally, frames of reference are used in the context of social frameworks, such as battered women's syndrome, to help a jury resolve other issues in the case such as "due care, intent, or purpose, and who likely did what and why." Christopher B. Mueller and Laird C. Kirkpatrick, Federal Evidence § 350 (1994). Therefore, frameworks require that a jury make an inference from the evidence presented and fit it to the facts at hand. We recently discussed framework evidence in Masters v. People, 58 P.3d 979 (Colo.2002), where the expert, Dr. Meloy, testified about characteristics he regarded as consistent with sexual homicides.

In this case, the prosecution attempted to use a frame of reference for purposes of showing the amount of force that Martinez may have employed. However, unlike Masters, other than the mere similarity in a subdural hematoma, we cannot discern a valid framework in which the characteristics of accident scenarios are consistent with shaken-impact syndrome. Simply put, before we limit a jury's understanding of the force required and biomechanies resulting in subdural hematomas in shaken-impact syndrome to that occurring in the accident scenarios, a jury needs the relationship between shaken-impact syndrome and accident scenarios.

Dr. Rosquist did not offer any links or a fit between the accident seenarios and shaken-impact syndrome. Indeed, she stated that the amount of force used in shaken-impact syndrome to cause a subdural hematoma is unknown; nor could she state how many shakes are necessary as she conceded on cross-examination. As such, she could not show the overlap of the subsets of mechanisms which cause subdural hematomas.

Although it is unreasonable to conclude that the link between the force in shaken baby cases and accident seenarios must be known to a certainty, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590, 113 S.Ct. 2786, 125 LEd.2d 469 (1993), we require some link in addition to the same injury before we will allow evidence to be presented to the jury. Id. at 591, 113 S.Ct. 2786 ("(absent credible evidence [of fered to the jury] supporting such a link) evidence that the moon was full on a certain night will not assist the trier of fact in determining whether an individual was unusually likely to have behaved irrationally on that night"). Finally, the prosecution sought to introduce accident scenario evidence as a frame of reference because babies cannot be shaken in a test scenario; but the paucity of scientific studies, empirical or otherwise, is not a sufficient basis to admit evidence that has no relevance for the purpose it is offered.

Because Rule 702's helpfulness standard requires a valid scientific connection, annun-ciated to the jury, without more foundation, we cannot sanction such a frame of reference. Although this purpose is not a valid one for which the evidence may be admitted, the evidence is admissible nonetheless to provide a basis of Dr. Rosquist's opinion as explained above. We perform a CRE 4083 analysis only for the admissibility of accident scenarios as the basis of the doctor's testimony.

D. CRE 403

CRE 403 favors the admissibility of evidence, but evidence should be exeluded when it is unfairly prejudicial, when it has an undue tendency to suggest a decision on an improper basis. People v. District Court, 869 P.2d 1281 (Colo.1994). For the purpose of serving as a basis of the doctor's testimony, the images of babies falling from several story buildings or of unrestrained children in automobile accidents are shocking and could leave an indelible image in the minds of the jury. Although we find the testimony is helpful to the jury, its prejudicial nature must be weighed against its probative force. Other courts have admitted this evidence in passing and without comment for various purposes, and we cannot find that the trial court abused its discretion in admitting Dr. Rosquist's testimony.

III. EVIDENCE OF ACCIDENT SCENARIOS TO ASSIST IN A MENS REA DETERMINATION IS NOT DIS-POSITIVE OF MENS REA

The prosecution and amici have expounded on the necessity of accident scenarios to establish a defendant's mens rea: a perpetrator alone with a baby when it is shaken and slammed will likely not admit to the amount of force used. However, necessity is not the proper basis for assessing the admissibility of evidence; rather the evidence must satisfy CRE 702 and CRE 408.

Additionally, we are skeptical that the introduction of accident scenarios, alone, can be used to establish the mens rea of knowing conduct. - Indeed, such evidence alone is neither direct nor cireumstantial evidence of the amount of force that a particular defendant may have used. Evidence suggests that many parents and care-givers are unaware of the dangers of shaking a baby.

However, intent may be shown by cireum-stantial evidence such as the serious nature of the injuries; admissions by the perpetrator; a failure to seek medical care; indicators of prior injuries suggesting repeated abuse; the brutality of the attack; the disparity of the size and strength between the victim and the perpetrator; the defendant's lack of remorse and efforts to avoid detection; the concealment of the victim's body; and finally motive. Charles A. Phipps, Responding to Child Homicide: A Statutory Proposal, 89 J.Crim. L. & Criminology 535, 575 (1999). Thus, we caution that to rely solely on accident scenario evidence to prove intent may in some cases fail to meet the constitutional burden of proof beyond a reasonable doubt.

IV. REBUTTAL CLOSING ARGUMENT

We briefly address the effect of the prosecution's rebuttal closing argument on the admissibility of Dr. Rosquist's evidence in the first instance. The prosecutor urged the jury to use Dr. Rosquist's testimony as a frame of reference, from which it could be reasonably inferred that Martinez used force equivalent to that described in the accident scenarios.

Although we would find that the prosecutor's inference may not necessarily follow from the expert's testimony-we do not agree with the prosecution's determination of quantum of force necessary to cause a sub-dural hematoma when the expert stated that the same is unknown-it does not control our decision that the trial court did not abuse its discretion in admitting Dr. Rosquist's testimony. The testimony was admissible for the purposes of showing the basis of the doctor's opinion and, therefore, an improper inference in closing argument does not make that evi-denee inadmissible after the fact.

v. CONCLUSION

A trial court admitted the testimony of an expert, Dr. Rosquist, describing horrific accident scenarios, to explain to a jury that subdural hematomas result from massive, violent force. The court of appeals reversed the conviction, reasoning that inadmissible expert testimony was used to establish the central question in this case of whether Martinez knowingly caused the death of a child by a person in a position of trust. Although we agree that the use of accident seenarios in this case to prove mens rea was improper, we find that the trial court did not abuse its discretion in admitting this testimony because it was helpful to the jury as the basis of the expert's opinion. Accordingly we reverse the judgment of the court of appeals.

Justice COATS does not participate.

      . In this decision, we use interchangeably shaken baby and shaken-impact syndrome due to differences in how the testimony is introduced. However, because Heather was slammed against an object, her injuries are more akin to shaken-impact syndrome.

      . We granted this petition for certiorari on the following issue: Whether the court of appeals holding, that the prosecution's expert testimony concerning situations in which infants suffered brain injury inflicted by extreme amounts of force is irrelevant and unfairly prejudicial, conflicts with this Court's recent decision in People v. Shreck, 22 P.3d 68 (Colo.2001), and the Colorado Rules of Evidence.

      . Dr. Martin, on direct testimony, stated that doll was not an accurate model of an infant as the neck region was missing and the doll's head was too rigid. Further, she stated the head on an infant is generally larger and more disproportionate to the body than the doll depicted.

      . In response to defense counsel's closing arguments that babies are fragile and that minimal force could have caused Heather's injuries, the prosecution in rebuttal closing argument, citing Dr. Rosquist's testimony, equated the magnitude of force used by Martinez to that in described accident scenarios as proof that he knowingly killed Heather.
      Subdural is what Heather suffered.... It is subdural hematoma that comes from this sort of action. That is what killed her. And that is what Dr. Rosquist talked about. She said violent, massive injury. How do you say that? How do you get up and say violent? What does that mean? What does that mean to a doctor? - That is a word we use? What is your frame of reference? Well a frame of reference is not for shock value, but because we can't experiment on little children to find, "Well, if I do this and that, now let's see what it did."
      We can't do that.
      So what you do is you find situations where there have been horrendous accidents. A child has fallen off a multi-story building. A child has been ejected from a wreck. They took those children and found the injuries they have. That is how we know that this is the kind of injury here that Stephen Martinez inflicted on this baby. That is what she meant by violence, and that is where you get a subdural hematoma.
      That is what Stephen Martinez did when he was alone. That is how you figure out what he was thinking and what he knew and what he had to have known. And that is why the charge fits.

      Now that we know the extent of the injuries, right, the weight of the injuries, the extent of the mortal blows, and the mortal shaking, now we know the necessary force. As [the pediatrician] told us, we know it because it's fact; it's true. It has been observed in the real world. One, we now know the necessary force that takes us to that level of violence. The violence that must be exerted to exert that kind of force on the back of a child's head. Okay? And now know his level of violence; we know his true actions. What did he have to have done? What did he have to do? And if he was doing that, he had to have known what he was doing, and he had to have known what it was going to do to her. It is inescapable to conclude otherwise.
      (emphasis added). However, the propriety of the arguments made in rebuttal closing argument is not before this court, and admissibility of expert testimony, in the first instance, is independent of later prosecutorial inferences inconsistent with the purpose for which the evidence is admissible.

      . (1) Some children who suffer subdural hemato-mas are children who have been subjected to trauma or force such as that sustained by a fall from a multistory building or being unrestrained in a high-speed automobile accident.
      (2) This child [Heather] sustained a subdural hematoma.
      (3) Therefore, this child was subjected to trauma or force equal to or exceeding that caused by a fall from a multistory building or being unrestrained in a high-speed automobile accident.

        Martinez, 51 P.3d at 1050-51.

      . We note here that the basis of Dr. Rosquist's testimony falls under CRE 702, not CRE 703, as it is expository, scientific information. See Edward J. Imwinkelreid, The "Bases" of Expert Testimony: The Syllogistic Structure of Scientific Testimony, 67 N.C. L.Rev. 1 (1988) (differentiating FRE 702 and FRE 703 on major and minor premises of expert testimony); Edward J. Im-winkelreid, The Meaning of "Facts or Data" in Federal Rule of Evidence 703: The Significance of the Supreme Court's Decision to Rely on Federal Rule 702 in Daubert v. Merrell Dow Pharmaceuticals, Inc. 54 Md. L.Rev. 352 (1995). We also note that this testimony, as the basis of an opinion, is itself not opinion testimony, but falls into the category of testimony that allows an expert to go into explanatory discourse. CRE 702 (an expert may testify in the form of an opinion or otherwise); "or otherwise" implies that an expert can offer a "dissertation or exposition" on her area of expertise. Practical Inconvenience or Conceptual Confusion: The Common Law Genesis of Federal Rule of Evidence 703 20 American Journal of Trial Advocacy 467 (1997).

      . Garcia v. People, 997 P.2d 1, 3 (Colo,2000) (on cross-examination, state's experts conceded that a subdural hematoma could result from a fall of three and one-half feet and that injuries could also have resulted from high falls onto hard surfaces or car accidents); People v. Sargent, 19 Cal. 4th 1206, 81 Cal.Rptr.2d 835, 970 P.2d 409 (1999) (in rebutting defendant's contentions that baby had rolled off of the couch or had fallen onto kitchen floor, the expert testified that the fall would have had to be from a second-story window); Commonwealth v. Derk, 553 Pa. 325, 719 A.2d 262, 264 (1998) (child's head injuries including linear skull fracture, epidural hemorrhaging and brain herniation were consistent with child having been dropped from a multistory building); State v. Jensen, 236 Wis.2d 521, 613 N.W.2d 170, 176 (2000) (trauma from vigorous shaking similar to being thrown from a third-story building).


source: Caselaw Access Project

author: Judge ROY. Judge MARQUEZ

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Christopher PEREA, Defendant-Appellant.
    No. 00CA1473.
    Colorado Court of Appeals, Div. V.
    Aug. 1, 2002.
    Rehearing Denied Sept. 19, 2002.

    Certiorari Denied July 28, 2003.

      Ken Salazar, Attorney General, John J. Krause, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Ellen K. Eggleston, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

       Marques, J., would GRANT.

       Justice COATS does not participate.

   Opinion by

Judge ROY.

Defendant, Christopher Perea, appeals from a judgment of conviction of eseape in violation of §§ 17-27.5-104 and 18-8-208(2), C.R.S.2001. We affirm the conviction, vacate the sentence, and remand for resentencing.

In August 1999, defendant, after release from incarceration, began serving a period of mandatory parole in an intensive supervision program (ISP). Defendant's parole officer informed him of the conditions of parole and the ISP directives, including the assigned curfew and electronic monitoring with an ankle bracelet, as well as the possible consequences of violations of the conditions and directives. Defendant initialed each ISP directive and signed the document.

On September 14, 1999, defendant's monitor showed that he had violated his curfew. The next day, defendant failed to appear for a scheduled appointment with his parole officer, and the electronic monitor indicated that the transmitter was unplugged. On September 20, when parole officers arrived at defendant's residence to investigate, defendant was present, but fled. The officers found that the ankle bracelet had been cut and the transmitter unplugged. Defendant was arrested two weeks later and convicted of felony escape after a trial to the court.

1.

Defendant argues that the State Board of Parole was not authorized to place him in an ISP pursuant to § 17-27.5-106, C.R.S.2001, because he was on mandatory parole and therefore not an offender who had been "granted parole" as that term is used in the statute authorizing ISP. We disagree.

In People v. Garcia, 64 P.3d 857, 2002 WL 58926 (Colo.App. No. 99CA2360, Jan. 17, 2002), another division of this court expressly rejected this argument. We are persuaded by the analysis and rationale of Garcia and, therefore, decline to depart from that holding.

II.

Defendant contends that his convietion was invalid because § 17-27.5-104 precedes § 17-27.5-106 and therefore does not apply to the latter statute. We know of no such rule of statutory construction and thus reject the argument.

Courts must read and consider the statutory scheme as a whole to give consistent, harmonious, and sensible effect to all its parts. See Martin v. People, 27 P.3d 846 (Colo.2001).

Section 17-27.5-106 authorizes the use of ISPs. Section 17-27.5-104 defines escape from custody in the context of ISPs:

If an offender fuils to remain within the extended limits on his confinement as established under the intensive supervision program, or, having been ordered by the parole board, the executive director, or the administrator of the program to return to the correctional institution, neglects or fails to do so, he shall be deemed to have escaped from custody and shall, upon conviction thereof, be punished as provided in section 18-8-208, C.R.S. (emphasis added)

In light of the explicit reference to ISPs in § 17-27.5-104, this section plainly applies to § 17-27.5-106 and thus to defendant here.

IIL.

Defendant contends that there was insufficient evidence that he failed to remain within "the extended limits on his confinement" as that phrase is used in § 17-27.5-104. We disagree.

A.

Section 17-27.5-104 provides that "[I]f an offender fails to remain within the extended limits on his confinement as established under the intensive supervision program ... he shall be deemed to have escaped from custody.”

Defendant argues that neither the statute nor case law has defined the phrase "extended limits on his confinement." He maintains that because the plain and ordinary meaning of the word "extended" is "expanded," or "extended limits" means "outer limits," the phrase here unambiguously refers to the ISP directive that he remain within the Denver Metropolitan Area and the state of Colorado. We disagree.

In People v. Williams, 83 P.3d 1187 (Colo.App.2001), a division of this court disagreed with an identical characterization of the phrase "extended limits on his confinement." - Although declining to reach the issue of the definition of the phrase, the division concluded that a curfew directive constituted an extended limitation on that defendant's confinement. In People v. Lucero, 654 P.2d 835 (Colo.1982), the supreme court held that an offender who was temporarily released from a correctional facility on a day pass remained in constructive custody, and the pass merely extended the limits of confinement from the facility to those granted by the pass. In light of these decisions, it is clear that the phrase "extended limits on his confinement" in § 17-27.5-104 refers to geographic and time limits placed on the offender beyond those imposed by incarceration in a correctional facility.

The trial court here correctly convicted defendant based on his violation of the reduced geographical limits imposed by the curfew directive, which his parole officer read and explained to him and which he signed. Thus, defendant knew of and understood the geographical limit imposed on him by the curfew.

B.

In a parallel argument, defendant argues that there was insufficient evidence to support the trial court's conclusion that he left his residence during the curfew period. He asserts that the prosecution presented evidence only that his monitor ceased to function and transmit signals from his ankle bracelet over the residential phone line because it was unplugged. We are not persuaded.

This case was tried to the court. It was free to consider and give equal weight to both direct and cireumstantial evidence; to judge the sufficiency, probative effect, and weight of the evidence; and to draw any reasonable inferences and conclusions from the evidence. We cannot disturb its factual findings if they are supported by the record, as they are here. See People v. Stark, 691 P.2d 334 (Colo.1984); People v. Gagnon, 997 P.2d 1278 (Colo.App.1999).

The trial court found, "[The idea that [defendant] would eut off his ankle bracelet, disconnect the box, and fail to report to his parole officer, yet all the while continued to remain in the house ... doesn't make any sense at all."

The evidence established that defendant was out of range of the transmission box in his residence for brief periods during curfew hours on September 14 such that the transmission box could not record his proximity to the residence; the transmission box was disconnected as of September 15; defendant failed to report to his parole officer as required on September 15 and thereafter; when officers arrived at the residence on September 20, defendant fled, and the officers discovered that the ankle bracelet had been cut off.

This evidence supports the reasonable inference that defendant violated the curfew and thus the "extended limits on his confinement," see People v. Williams, supra, so we may not disturb the trial court's findings of fact.

C.

Defendant also argues that if the phrase "extended limits on his confinement" does not mean the Denver Metropolitan Area, then the statute violates due process because it is unconstitutionally vague. We disagree.

Statutes are presumed to be constitutional, and the party challenging a statute bears the burden of establishing unconstitutionality beyond a reasonable doubt. See People v. Janousek, 871 P.2d 1189 (Colo.1994). When reviewing a challenge based on vagueness, the court must construe the statute to uphold its constitutionality whenever a reasonable and practical construction may be applied. See People v. Longoria, 862 P.2d 266 (Colo.1993); see also People v. Hickman, 988 P.2d 628 (Colo.1999) (statute invalidated for vagueness if no limiting construction consistent with legislature's intent will preserve its constitutionality).

A law violates due process and is void for vagueness where its prohibitions are not clearly defined. Vague laws offend due process because they fail to give fair notice of the conduct prohibited and do not supply adequate standards to prevent arbitrary and discriminatory enforcement. See People v. Baer, 973 P.2d 1225 (Colo.1999); People w. Holmes, 959 P.2d 406 (Colo.1998).

When a statute is challenged as void for vagueness, the essential inquiry is whether the statute describes the forbidden conduct in terms so vague that persons of common intelligence cannot readily understand its meaning and application. See People v. Longoria, supra; Watso v. Colorado Department of Social Services, 841 P.2d 299 (Colo.1992). However, statutory standards frequently contain broad terms to ensure their applicability to varied circumstances. Generality is not the equivalent of vagueness; neither scientific nor mathematical certainty is required. A provision is not unconstitutionally vague simply because it could have been drafted with greater precision. See Board of Education v. Wilder, 960 P.2d 695 (Colo.1998); Watso v. Colorado Department of Social Services, supra.

A law is unconstitutionally vague only if it specifies no standard of conduct at all, and not if it requires a person to conform his or her conduct to an imprecise, but comprehensible normative standard. See People v. Hickman, supro; Board of Education v. Wilder, supra. We may sustain a facial vagueness challenge only where the enactment is impermissibly vague in all of its applications. See People v. Baer, supra.

A person who engages in conduct that is clearly proscribed by the statute cannot complain of the vagueness of the law as applied to the conduct of others. Therefore, in evaluating a statute, a court should focus on the complainant's conduct before analyzing other hypothetical applications of the law. In other words, one to whom a statute clearly applies may not successfully challenge it for vagueness. See Board of Education v. Wilder, supra; see also People v. Baer, supra.

The due process requirement that a statute clearly define the prohibited conduct is not relaxed simply because the statute delegates certain decisions to an agency. In such a situation, the responsibility to promulgate clear and unambiguous standards is on the ageney. See People v. Holmes, supra.

Here, § 17-27.5-104 specifies a standard of conduct. See People v. Hickman, supra. We have already concluded, with existing precedent as support, that the phrase "extended limits on his confinement" refers to limits beyond those imposed on an offender who is incarcerated in a correctional facility, a construction that comports with constitutional due process.

Section 17-27.5-102, C.R.S.2001, empowers the Department of Corrections (DOC) to establish and enforce standards and criteria for administration of ISPs, and the statute provides basic minimum guidelines in that regard. An offender is given detailed notice of the extended limits of the ISP and informed of the potential consequences of violation when he or she is released into an ISP.

Defendant has not demonstrated beyond a reasonable doubt that the DOC's ISP directives or conditions of parole are not clear and unambiguous, and thus he has not carried his burden of proof. See People v. Holmes, supro (agency may promulgate clear and unambiguous standards if statute delegates such authority).

Further, although the phrase "extended limits on his confinement" is sufficiently general that it could arguably extend to any ISP limit, defendant here was convicted of escape for violations of geographical limits. The "extended limits" contemplated by § 17-27.5-104 clearly pertain at a minimum to geographical limits, as evidenced by § 17-27.5-102 and the DOC's ISP directives, each of which defendant acknowledged by signature. Defendant thus was required to conform to the standard of conduct in the ISP directives confining him to specified geographical limits.

Accordingly, defendant may not successfully challenge § 17-27.5-104 for vagueness because the statute clearly applies to his violation of the geographical limits of the ISP. See Board of Education v. Wilder, supra.

IV.

Defendant also argues that the application of § 17-27.5-104 violated constitutional separation of powers, equal protection, and double jeopardy principles. We are not persuaded.

A.

We decline to address defendant's separation of powers claim because the ree-ord reveals that it was not first raised in the trial court. See People v. Cagle, 751 P.2d 614 (Colo.1988) (constitutional issues not raised in trial court will not be considered when raised for the first time on appeal). Defendant relies on a sentence incorrectly quoted from his motion to dismiss in the trial court, but that sentence clearly was part of a due process argument.

Similarly, because defendant did not raise his double jeopardy claim in the trial court, we do not address it on appeal. See People v. Cagle, supra.

B.

Defendant argues that his escape conviction violated his right to equal protection of the laws because there is no rational basis for determining which mandatory parolees will be subject to an ISP and, as such, punished more severely than other similarly situated parolees. Defendant insists that § 17-27.5-106 provides no standards or criteria for determining which mandatory parolees should be subject to an ISP and which should be placed on regular parole. We disagree.

In People v. Williams, supra, another division of this court rejected the identical argument and concluded that § 17-27.5-106 incorporates the standards and criteria set forth in § 17-27.5-102(8), C.R.S.2001, for the parole board to consider when selecting parolees for placement in an ISP. Despite defendant's urging, we decline to depart from that decision and hence find no equal protection violation.

v.

Defendant next contends that the trial court improperly concluded that it was required to impose a consecutive sentence pursuant to § 18-8-209, C.R.S.2001, and an additional period of parole. We disagree.

A.

As relevant here, § 18-8-209 provides that "[alny sentence imposed following conviction of an offense under [§ 18-8-208, C.R.S.2001] shall run consecutively and not concurrently with any sentence which the offender was serving at the time of the conduct prohibited by [that section]."

Mandatory parole is a statutorily prescribed sentence component that attaches automatically to any sentence involving imprisonment. See $ 18-1-105(1)(a)(V), C.R.S. 2001; People v. Johnson, 183 P.3d 309 (Colo. 2000) (mandatory parole is a distinct element of sentencing, separate from the terms of imprisonment or length of sentence imposed by the trial court); Craig v. People, 986 P.2d 951 (Colo.1999).

Thus, because mandatory parole is one component of a sentence, defendant was still serving his sentence at the time of his escape. The trial court therefore properly imposed a mandatory consecutive sentence pursuant to § 18-8-209.

B.

In a related argument, defendant argues that the trial court improperly imposed an additional period of mandatory parole. We disagree.

When defendant was granted mandatory parole on his sentence for his initial convietion, the balance of his sentence to incarceration - was - discharged. See § 18-1-105(1)(a)(V)(D), C.R.8.2001. - Defendant violated the terms of his mandatory parole, it was revoked, and he was reincarcerated for the balance of the time remaining on his mandatory parole pursuant to § 17-22.5-403, C.R.8.2001.

Defendant's felony escape conviction required that his sentence for that offense run consecutively to his prior sentences. See § 18-8-208; People v. Amdrews, 871 P.2d 1199 (Colo.1994).

Section 18-1-105(1)(a)(V)(E), C.R.9.2001, provides:

If an offender is sentenced consecutively for the commission of two or more felony offenses pursuant to [§ 18-1-105(1)(a)(V)(A) ], the mandatory period of parole for such offender shall be the mandatory period of parole established for the highest class felony of which such offender has been convicted.

Defendant - contends - that - § 18-1-105(1)(a)(V)(E) applies to any defendant convicted of two felonies and that he had been convicted of two felonies when convicted of escape. He therefore argues that his sentence for escape must run concurrently with the period of mandatory parole imposed on his initial conviction. We are not persuaded.

Another division of this court addressed precisely this question in People v. Luther, 43 P.3d 660 (Colo.App.2001) (cert. granted Mar. 18, 2002). That division concluded that, because the period of mandatory parole on the first conviction includes the time during which a person is reincarcerated following revocation of that parole, an offender could not be reincarcerated for the balance of the revoked mandatory parole for the first conviction before commencing a consecutive sentence that included another period of mandatory parole in light of § 18-1-105(1)(a)(V)(E). Accordingly, the division in effect required that the initial portion of the defendant's second or consecutive sentence to incarceration be served concurrently with the first sentence until the period of mandatory parole associated with that first sentence was extinguished along with the attendant possibility of reincareeration.

However, for the reasons articulated below, we decline to follow the reasoning and analysis of Luther and reject the conclusion reached there.

In 1998, the General Assembly adopted a mandatory parole scheme for convicted felons. Colorado case law recognizes that under this scheme the prison term and parole term are separate components of the sentence, namely, a determinate period of incarceration and a predetermined period of parole. See Martin v. People, supra.

A parolee is conditionally released from actual custody, but in the contemplation of the law, still is in legal custody and constructively a prisoner of the state. The revocation of the parole results in the reinearcer-ation of the parolee. Thus, reincarceration for a parole violation is incarceration on an already imposed sentence, and a defendant convicted of a felony committed while on parole may receive a sentence that runs consecutively to any reinearceration that may be imposed if the defendant's parole is revoked. Ree People v. Lucero, 772 P.2d 58 (Colo.1989).

Here, we are examining a subsection that was added to § 18-1-105 in 1993, subsequent to People v. Lucero, supra. We must presume that, when the General Assembly legislates in a certain area of law, it does so with awareness of the judicial precedent in that area. See Griego v. People, 19 P.3d 1 (Colo.2001); Cooper v. People 973 P.2d 1234 (Colo.1999). We also presume that an amendment does not change existing law further than is expressly declared or necessarily implied. See People in Interest of E.E.A. v. J.M., 854 P.2d 1346 (Colo.App.1992). We therefore presume that the legislature was aware of People v. Lucero, supra, when it added § 18-1-105(1)(a)(V)(E).

Yet, § 18-1-105(1)(a)(V)(E) does not expressly address how mandatory parole is imposed on an offender who is reincarcerated after conviction for escape from mandatory parole. Therefore, to avoid changing the law further than is expressly declared or necessarily implied, we decline to apply the statute when an offender is sentenced for the commission of a felony while serving mandatory parole as part of an already imposed sentence for a prior felony.

Mandatory parole is required, "at least in part, to insure the post-incarceration supervision of offenders who were not offered, or chose not to accept, parole release prior to the completion of their entire sentence to incarceration." Martin v. People, supra, 27 P.8d at 864 (Coats, J., dissenting). The term of mandatory parole does not even commence until the sentence of incarceration has been fully discharged. See §§ 17-22.5-408(7), - 18-1-105(1)(a)(V)(B), - C.R.S.2001; Colo. Sess. Laws 19983, ch. 322, § 18-1-105(1)(a)(V)(D) at 1982-83; People v. Barth, 981 P.2d 1102 (Colo.App.1999).

There is a distinct difference between the mandatory parole period and the period of reincarceration following violation of the conditions of parole. Indeed, when a parolee is reincarcerated following a parole violation, his or her parole is considered to be extinguished. See, eg., § 17-2108, C.R.S. 2001; Rather v. Suthers, 973 P.2d 1264 (Colo.1999); People v. Williams, supra; see also People v. Luther, supra, 43 P.3d at 662; Black's Law Dictionary 1321 (Tth ed.1999) (defining "revocation". Thus, onee parole is revoked, it ceases to exist. The offender no longer is serving a period of parole, but instead is serving a penalty period of confinement for the parole violation. See Martin v. People, supra.

Consequently, when a defendant's mandatory parole is revoked, that defendant is no longer serving mandatory parole, but rather another period of incarceration. As such, the imposition of a consecutive sentence plus another period of mandatory parole for eseape - does - not - violate - § 18-1-105(1)(a)(V)(E) because the mandatory period of parole from the first conviction has been extinguished by the parole revocation.

Further, the interpretation in Luther rewards a felon who is convicted of a subsequent felony committed while on mandatory parole by effectively commuting the reincar-ceration penalty for a parole violation, which in our view is not an intended result, The Luther interpretation robs the reincarceration following a parole violation of its deterrent effect, an important tool for successfully reintegrating offenders into the community consistently with the needs of public safety, and thus Luther, in our view, conflicts with the purposes of parole. See People v. McCullough, 6 P.3d 774 (Colo.2000).

The division in Luther concluded that the cireumstances there, and here, were similar to the cireumstances in Dawson v. People, 30 P.3d 218 (Colo.2001), which dealt with the adequacy of the advisement given the defendant concerning mandatory parole. We disagree with that conclusion.

In Dawson, the defendant was initially sentenced to community corrections for a term of eight years, escaped, and was resen-tenced to cight years in the DOC together with five years of mandatory parole. Having also pleaded guilty to attempted escape, he was sentenced to a consecutive sentence of three years plus three years of mandatory parole. The defendant was not advised of mandatory parole with respect to the escape conviction and was not advised as to the length of mandatory parole on the first conviction. However, the defendant was advised that a sentence would be followed by a period of parole. A three-justice majority (two dissenting and two not participating) concluded that both advisements were deficient, but held that the errors were harmless because the defendant had been advised that he faced combined sentences totaling twenty-four years and received only eleven years plus three years of mandatory parole. It is not apparent that the application of § 18-1-105(1)(a)(V)(E) was an issue in Dawson. In a footnote, however, the court indicated that these sentences did not violate § 18-1-105(1)(a)(V)(E), because "[elven though the sentences were consecutive, the period of parole is concurrent." Dawson v. People, supra, 30 P.8d at 217 n. 8. Dawson is distinguishable because, unlike here, there the defendant had not commenced serving the mandatory parole associated with the first sentence which was then revoked, thereby discharging it.

We therefore find no error in defendant's sentence including a period of mandatory parole for his escape conviction.

VI.

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 § 16-11-1025), C.R.S.2001, and Crim. P. 32(b). We agree.

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).

Here, immediately after witness testimony urging that the court impose the maximum sentence, the court asked whether there was "[alny response from the defendant." Defense counsel briefly responded. Based on this record, we cannot conclude that the court's question left no doubt that defendant was personally invited to speak, rather than merely suggested that defense counsel could respond to the testimony if he chose to do so. Thus, the sentence cannot stand, and the matter must be remanded for resentencing. See People v. Garcia, 752 P.2d 570 (Colo.1988).

Accordingly, the judgment is affirmed, the sentence is vacated, and the case is remanded for resentencing.

Judge NIETO concurs.

Judge MARQUEZ concurs in part and dissents in part.

Judge MARQUEZ

concurring in part and dissenting in part.

While I concur with the remainder of the majority opinion, for the reasons set forth in People v. Luther, 48 P.3d 660 (Colo.App.2001) (cert. granted Mar. 18, 2002), I respectfully dissent from part V.B. Thus, I would remand for correction of the mittimus to reflect that the periods of parole are concurrent.


author: Judge DAILEY.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Steven Eugene CLOUSE, Defendant-Appellant.
    No. 01CA0725.
    Colorado Court of Appeals, Div. II.
    Aug. 15, 2002.
    Rehearing Denied Jan. 9, 2003.
    Certiorari Denied July 21, 2003.

      Ken Salazar, Attorney General, Christine C. Brady, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Steven Eugene Clouse, Pro Se.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2001.

   Opinion by

Judge DAILEY.

Defendant, Steven Eugene Clouse, appeals the trial court's order denying his second motion for Crim. P. 35(c) relief. We affirm part of the order, vacate part of it, and remand for further proceedings.

In 1990, defendant was convicted of two counts of second degree burglary, three counts of theft, one count of second degree forgery, and one count of first degree erimi-nal trespass. Upon being adjudicated an habitual offender, he was sentenced to life imprisonment. A division of this court affirmed his convictions and sentence on direct appeal in People v. Clouse, 859 P.2d 228 (Colo.App.1992), and, after the supreme court denied certiorari review, the mandate issued on October 18, 1998.

In 1994, defendant, while represented by counsel, filed a Crim. P. 35(c) motion, asserting seventeen grounds for postconviction relief, including ineffective assistance of trial and appellate counsel,. After conducting an evidentiary hearing, the trial court, on July 13, 1995, denied defendant relief other than to make his life sentence in this case concurrent with, rather than consecutive to, a life sentence in another case. A division of this court affirmed the trial court's ruling in People v. Clouse, (Colo.App. No. 95CA1444, Jan. 23, 1997)(not selected for official publication), and the mandate issued on October 3, 1997.

On September 21, 1998, defendant filed a second Crim. P. 35(c) motion, alleging (1) further ineffectiveness of trial and appellate counsel, (2) ineffectiveness of postconviction counsel, and (8) illegality of his habitual criminal sentence. Thereafter, he filed amended motions for postconviction relief on July 24, 2000 and March 14, 2001. In the amended motions, defendant included an additional claim of newly discovered evidence, as well as additional claims of ineffective assistance of postconviction counsel.

The trial court denied defendant's motions on the following grounds: (1) his claims, other than those pertaining to ineffective assistance of postconviction counsel, were sue-cessive in nature and time barred under § 16-5-402(1), C.R.98.2001; and (2) his ineffective assistance of postconviction counsel claims were time barred under § 16-5-402(1) because they were not brought within three years of the trial court's denial of postconviction relief.

Defendant now appeals.

L.

Initially, we reject defendant's assertion that his motions were not subject to the three-year limitation period prescribed by § 16-5-402(1).

Section 16-5-402(1) provides time limits for pursuing collateral attacks "following the date of ... conviction" for all erimes except "class 1 felonies." Here, defendant was not convicted of a class 1 felony; his most serious conviction was for the crime of second degree burglary involving a dwelling, a class 3 felony.

For purposes of § 16-5-402(1), it does not matter that defendant, as an habitual offender, was sentenced, like a class 1 felon, to life imprisonment. Had the General Assembly intended the result urged by defendant, it would have referred to offenders subject to life sentences instead of offenders convicted of class 1 felonies. See Mason v. People, 932 P.2d 1377, 1380 (Colo.1997)(interpreting speedy trial statute); see also People v. J.J.H., 17 P.3d 159, 162 (Colo.2001){courts should not presume that the legislature used language idly).

We also reject defendant's assertion that the § 16-5-402(1) time bar is inapplicable to his claim of an "illegal" sentence because, under Crim. P. 35(a), there is no time limit for challenging an "illegal" sentence. According to defendant, his sentence is "Hlle-gal" because: (1) his "life" sentence with possibility of parole is not authorized by statute; (2) the statutorily authorized sentence is imprisonment for "the term of [defendant's] natural life" under Colo. Sess. Laws 1981, ch. 200, § 16-18-101(2) at 948; and (8) the statutorily authorized sentence is unconstitutional in that it is disproportionately harsh for the crimes he committed.

Contrary to defendant's assertion, a person sentenced to life imprisonment under the applicable version of the habitual criminal statute is eligible for parole after forty years. See People v. Gaskins, 825 P.2d 30, 32-33 (Colo.1992). Further, § 16-5-402(1) applies to proportionality reviews of habitual erimi-nal sentences; consequently, the remedy defendant requests is subject to the § 16-5-402(1) time bar. See People v. Talley, 934 P.2d 859, 860 (Colo.App.1996). See also People v. Green, 36 P.3d 125, 126-28 (Colo.App.2001)(§ 16-5-402(1) time bar applicable to defendant's postconviction claim because it was not, in reality, a claim for the correction of an illegal sentence).

In sum, we conclude that defendant's motion was subject to the three-year limitation period of § 16-5-402(1), and because that period commenced upon the completion of defendant's direct appeal, see People v. Hampton, - 876 P.2d - 1236, 1240-41 (Colo.1994)(construing the term "conviction" in § 16-5-402), it expired, absent statutory exception, on October 18, 1996, three years after the issuance of the mandate in that appeal.

IL.

Defendant contends that the § 16-5-402(1) limitation period was tolled while he litigated his earlier motion for postconviction relief. We disagree.

Recently, another division of this court concluded that neither the timely commencement of a collateral attack, nor the pendency of an appeal from the denial of Crim. P. 35(c) relief, tolls the limitation period with respect to later asserted postconviction claims. People v. Ambos, 51 P.3d 1070, 1072 (Colo.App.2002). The logical corollary to this decision is that the § 16-5-402(1) limitation period is not tolled during the litigation of a postconviction relief motion. Because we agree with this decision and its logical corollary, we conclude that defendant eannot prevail on this point.

Defendant's reliance on 28 U.S.C. § 2244(d)(1), for a contrary result, is misplaced. Section 2244(d)(2) expressly excludes "(tlhe time during which a properly filed application for State post-conviction ... review ... is pending" from the time within which a state prisoner must file a petition for federal habeas corpus relief. In contrast, by its terms, § 16-5-402(1) does not exclude any period from computation of the time bar. Nor does it contain any "tolling" language. Rather, § 16-5-402(@2)(d), C.R.S.2001, provides only that a court may hear a collateral attack commenced after the limitation period if a defendant's "failure to seek relief within the applicable time period was the result of cireumstances amounting to justifiable excuse or excusable neglect."

IIL

Defendant next contends that the trial court erred in concluding that he had failed to establish justifiable excuse or excusable neglect for the untimely filing of his motions. We are not persuaded as to defendant's newly discovered evidence and sentencing claims, but conclude that further proceedings are necessary to resolve the other claims.

A defendant must allege in a Crim. P. 35 motion facts that, if true, would establish justifiable excuse or excusable neglect for a belated filing. People v. Wiedemer, 852 P.2d 424, 440 n. 15 (Colo.1993); People v. Xiong, 940 P.2d 1119, 1119-20 (Colo.App.1997).

In People v. Wiedemer, supra, 852 P.2d at 441-42, the supreme court set forth the following factors to consider in assessing the issue of justifiable excuse or excusable neglect: (1) whether cireumstances or outside influences prevented a challenge to the prior conviction; (2) whether a defendant who had reason to question the constitutionality of a conviction investigated its validity and took advantage of avenues of relief that were available; (8) whether the defendant either knew that the conviction was constitutionally infirm or had reason to question its validity; (4) whether the defendant had other means of preventing the government's use of the conviction so that a postconviction challenge was previously unnecessary; (5) the time between the date of conviction and the defendant's challenge; and (6) the effect that such period has on the state's ability to defend against the challenge.

Whether a defendant has demonstrated justifiable excuse or excusable neglect is a question of fact to be resolved by the trial court, whose ruling we will not overturn if the record supports its findings. People v. Wiedemer, supra; see also People v. Vigil, 983 P.2d 805, 810 (Colo.App.1999).

A.

Defendant contends that justifiable excuse or excusable neglect existed with respect to the belated filing of his claims of newly discovered evidence and disproportionate sentencing. We disagree.

Here, defendant alleged that his incarceration and indigence hindered his ability to find the new evidence. However, the alleged newly discovered evidence pertains to newspaper articles and related police reports of burglaries committed by others. Defendant recounted that his mother found the newspaper articles in July 2000. He acknowledged, however, that the articles and the newspaper were known to him before his 1990 trial, And, although he alleged that his trial counsel had been unable to find the articles, he proffered no reason why the articles or the related police reports could not have been discovered by himself or others before 2000.

Consequently, we conclude that the trial court did not err in finding no justifiable excuse or excusable neglect for defendant's belated claim of newly discovered evidence. See People v. Ambos, supra; People v. Vigil, supra, 983 P.2d at 809-10 (incarceration not justifiable excuse or excusable neglect); People v. Vigil, 955 P.2d 589, 591-92 (Colo.App.1997)(indigence and lack of legal assistance do not constitute excusable neglect).

We reach a similar conclusion with respect to defendant's illegal sentence claim, which, in any event, lacks substance. That claim is premised upon 1985 and 1990 statutes and defendant proffered no reason, except wholly conclusory allegations about ineffective counsel, why he could not have brought this claim by October 1996.

B.

Defendant relies upon more concrete assertions of ineffective assistance of post-conviction counsel as justifiable exeuse or excusable neglect for his failure to assert earlier his additional claims of ineffective assistance of trial and appellate counsel. He argues that he could not have previously pursued the numerous additional claims relating to trial error and ineffectiveness of trial and appellate counsel except through postconviction counsel and that he could not have known, until the end of the prior post-conviction relief proceedings, that postconviction counsel would be ineffective for failing to raise those claims. We conclude that further proceedings are necessary.

In People v. Hickey, 914 P.2d 377, 378-79 (Colo.App.1995), a division of this court held that, because convicted defendants have a limited statutory right to counsel in posteon-viction proceedings, they also have the right to the effective assistance of counsel in such proceedings. Other divisions of this court have agreed with Hickey, recognizing both: (1) a defendant has a right to bring ineffective assistance of postconviction counsel claims in Crim. P. 35(c) motions, People v. Fitzgerald, 973 P.24 708, 712 (Colo.App.1998); and (2) a Crim. P. 35(c) motion raising such a claim was not successive in nature to a defendant's first Crim. P. 35(c) motion. People v. Russell, 36 P.3d 92, 94 (Colo.App.2001).

Because, however, a defendant's right to raise claims of ineffective postconviction counsel could lead to postconviction proceedings ad infinitum, see, eg., Gibson v. Turpin, 270 Ga. 855, 861, 513 S.E.2d 186, 191 (1999); Bejarano v. Warden, 112 Nev. 1466, 1470-71, 929 P.2d 922, 925-26 (1996), and be subject to misuse as a mechanism for avoiding the requirements of § 16-5-402, claims of ineffece-tive postconviction counsel must themselves be timely asserted and pleaded with reasonable specificity.

The timeliness of those claims was not addressed in Hickey, Fitzgerald, or Russell, although it appears, from the factual recitations therein, that the claims were either initiated or to be initiated after the conclusion of postconviction relief appeals.

Here, as in the trial court, the parties agree that the limitation period under § 16-5-402(1) for raising claims of ineffective post-conviction counsel commences upon the completion of postconviction proceedings. They differ, however, as to the appropriate commencement date, the People arguing for the date the trial court denies relief, and defendant arguing for the date mandate issues in the postconviction appeal.

We, like the parties, recognize the impossibility of asserting ineffective postconviction counsel claims until the conclusion of post-conviction proceedings. However, by its terms, § 16-5-402(1) does not allow additional time for the completion of postconviction proceedings. Instead, it requires that all collateral attacks be brought within a certain period of time from the date of "conviction," unless "justifiable excuse or excusable neglect" is demonstrated.

Because in many instances postcon-viction proceedings will consume and even exceed the limitation period as measured from the date of conviction, we conclude that timeliness of ineffective postconviction counsel claims must ordinarily be assessed under the rubric of justifiable excuse or excusable neglect. However, in this context, the justifiable excuse or excusable neglect analysis begins with the premise that ineffective post-conviction counsel claims cannot be asserted until after timely postconviction relief proceedings and appeals therefrom are exhausted. Thereafter, the time to assert ineffective postconviction counsel claims should be assessed in light of the Wiedemer justifiable excuse or excusable neglect factors.

When so considered, defendant's September 21, 1998 motion may have been timely. But, because the motion contained only con-clusory allegations of ineffective postconviction counsel, it was still subject to summary dismissal by the trial court. See White v. Denver District Court, 766 P.2d 632, 635 (Colo.1988)(in a Crim. P. 35(c) motion, a defendant must allege facts that, if true, would provide a basis for relief).

Defendant's allegations became progressively more concrete, comprehensive, and inclusive of most, if not all, his other claims with each succeeding amended motion. Yet, he proffered no reason in those amended motions why he could not have presented his concrete allegations of ineffective postconviction counsel any earlier than July 2000 or March 2001, nearly three to three and a half years, respectively, after the completion of his postconviction appeal.

Still, we are reluctant to conclude, as a matter of law, that justifiable excuse or excusable neglect did not exist for the timing of defendant's belated concrete allegations of ineffective counsel. The representation of defendant by counsel for part of that time, as well as the court's permission to file one, if not two, amendments to the original motion, could conceivably constitute sufficient justifiable excuse or excusable neglect.

Because the issue of justifiable excuse and excusable neglect is ordinarily a question of fact, we remand the case to the trial court for its determination whether justifiable excuse or excusable neglect existed for filing sufficient allegations of ineffective counsel in 2000 and 2001. If the court determines that justifiable excuse or excusable neglect existed for those filings, then the court should determine the merits of defendant's ineffective postcon-viction counsel claims; and if ineffective assistance of postconviction counsel is demonstrated, then the court should reopen the original postconviction proceedings for consideration of those alleged new claims whose consideration was otherwise previously precluded by postconviction counsel's ineffectiveness.

The order is affirmed with respect to the denial of defendant's newly discovered evidence and illegal sentence claims; otherwise, the order is vacated, and the case is remanded for further proceedings consistent with the views expressed in this opinion.

Judge TAUBMAN and Judge PLANK, concur.


author: Judge METZGER.

text:
    In re the CUSTODY OF C.M., a minor child, P.B.C., Appellant, and J.D.M., Respondent, and Concerning K.D., Intervenor-Appellee, and State of Colorado, Intervenor-Appellee.
    No. 00CA2313.
    Colorado Court of Appeals, Div. I.
    Sept. 12, 2002.
    As Modified on Denial of Rehearing Jan. 2, 2003.
    Certiorari Denied Aug. 4, 2003.

      Law Offices of Joseph H. Antolinez, L.L.C., Joseph H. Antolinez, Lakewood, Law Office of Melissa E. Miller, L.L.C., Melissa E. Miller, Denver, CO, for Appellant.
    K.D., Pro Se.
    Ken Salazar, Attorney General, Steven S. Knowlton, Assistant Attorney General, Denver, CO, for Intervenor-Appellee State of Colorado.
   Opinion by

Judge METZGER.

In this post-decree proceeding, P.B.C. (mother) appeals the trial court's order awarding visitation to intervenor KD. (grandmother). We vacate the order and remand the case for further proceedings.

Pursuant to the 1998 stipulated permanent orders in the dissolution action between mother and J.D.M. (father), mother received sole eustody of their minor child, and all parenting time awarded to father was to be supervised by grandmother, his mother. The stipulation provided for supervised parenting time on weekends with alternating overnights on Saturdays. The parties also alternated legal holidays. The stipulation further specified that no formal grandparent visitation order was necessary because grandmother was to receive the same visitation as father, and he was not required to be present during her visitation. Grandmother also signed the stipulation.

Mother later moved to terminate father's parenting time based upon his alleged substance abuse and to reduce grandmother's visitation to one day per month with no overnights. The court terminated father's parenting time and also entered a temporary order that continued grandmother's visitation according to the established schedule, but outside father's presence. Grandmother responded that mother had denied scheduled visitation, and she requested not only that the existing schedule be permanently continued, but also that additional visitation be ordered to make up for denied visits.

After an evidentiary hearing, the trial court noted that mother, as the sole custodian, had decision-making authority for all major issues involving the child. Nevertheless, the court continued the basic schedule except for minor adjustments. The court ordered visitation on the first Saturday of every month from 9:00 a.m. to 7:00 p.m., and on the third weekend of every month from 9:00 a.m. Saturday to 10:00 a.m. Sunday. The court expressly provided that mother could be present during such visitation when she so desired. The court also ordered visitation overnight on grandmother's birthday every year and on grandparents' day in odd-numbered years. Grandmother was given visitation from 5:00 p.m. on December 23 until 8:00 p.m. on December 24, one overnight during the four-day Thanksgiving holiday, and the Saturday before Easter.

Mother appeals.

I.

We reject mother's contention that § 19-1-~117, C.R.S.2001, which authorizes a trial court to award a grandparent reasonable visitation with a grandchild if such an award is in the best interests of the child, see In re Marriage of Oswald, 847 P.2d 251 (Colo.App.1993), is unconstitutional on its face.

A.

A legislative enactment that infringes on a fundamental right is constitutionally permissible only if it is necessary to promote a compelling state interest and does so in the least restrictive manner possible. Evans v. Romer, 882 P.2d 1335 (Colo.1994), aff'd, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996); Collins v. Jaquez, 15 P.3d 299 (Colo.App.2000).

A statute is unconstitutional on its face if no conceivable set of circumstances exists under which it may be applied in a constitutionally permissible manner. Reno v. Flores, 507 U.S. 292, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993); People v. Juvenile Court, 893 P.2d 81 (Colo.1995).

When a statute is susceptible of both constitutional and unconstitutional interpretations, we must adopt the constitutional interpretation. Renteria v. Colorado State Dep't of Pers., 811 P.2d 797, 799 (Colo.1991).

B.

The Supreme Court has addressed the issue of parental autonomy in a number of cases over the years and has always used strict serutiny when deciding those cases. Lassiter v. Dep't of Social Servs., 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981); Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944); Pierce v. Soc'y of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); see generally Maegen E. Peek, Grandparent Visitation Statutes: Do Legislatures Know the Way to Carry the Sleigh Through the Wide and Drifting Law?, 53 Fla. L.Rev. 321 (2001).

In Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 LEd.2d 49 (2000), the Supreme Court considered the Washington grandparent visitation statute, but did not specify the appropriate level of serutiny for statutes that infringe on the parent-child relationship. See Bryan Thomas White, Note, Muddling Through the Murky Waters of Troxel: Will Grandparent Visitation Sink or Swim?, 39 Fam. & Conciliation Cts. Rev. 104, 108 (2001). The Court also did not decide whether the state's interest was a compelling one. However, the potential intrusions upon fundamental parental rights posed by the Washington statute clearly led the Court to determine that the statute did not satisfy due process. Thus, we conclude that strict seru-tiny is the proper standard of review.

C.

In Trozel v. Granville, supra, a plurality of the Supreme Court struck down the Washington statute because it unconstitutionally infringed upon the fundamental due process right of parents to make decisions concerning the care, custody, and control of their children. - The statute, Wash. Rev.Code § 26.10.160(8), permitted "any person" to petition for visitation rights "at any time" and authorized the courts to grant such rights whenever visitation served the child's best interests.

The Supreme Court initially observed that one of the earliest recognized fundamental rights is that of parents to rear their children. It then found that the "breathtakingly" broad seope of the Washington statute infringed on that fundamental right. In particular, the Court noted that the statute limited neither when nor by whom a petition for visitation could be brought. The statute also failed to require that the parent's decision concerning visitation be given any presumption of validity or special weight in the best interests determination. In practical effect, therefore, the statute permitted a court to disregard and overturn any decision by a fit biological parent concerning visitation based solely on the court's determination of the child's best interests. Thus, the statute placed the burden on the fit biological parent to disprove that visitation would be in the child's best interests.

The Court concluded that this decisional framework contravened the traditional presumption that fit parents will act in the best interests of their children. To avoid such a result, the Court held that a fit parent's own determination must be accorded special weight.

The Court declined to define further the precise scope of the parental due process right in the visitation context because visitation is decided on a case-by-case basis. Specifically, the Court refused to consider whether due process requires that all nonpa-rental visitation statutes include a showing of harm or potential harm to the child as a condition precedent to granting visitation over a parent's wishes.

D.

Mother maintains that § 19-1-117(1), C.R.S.2001, is unconstitutional because, like the statute in Troxel, it does not require the court to give any special weight or presumptive effect to a biological parent's wishes when determining the child's best interests. The State appears in this appeal for the purpose of defending the constitutionality of § 19-1-117 pursuant to C.R.C.P. 57(j) and C.A.R. 44(a), and urges that the best interests standard itself mandates not only that the parent's preferences be considered, but also that deference be accorded to parental decisions. We agree with the State's interpretation. |

Unlike the statute at issue in Trowel, § 19-1-117(1) limits standing to grandparents and permits a petition for visitation only if there is or has been a child custody case or a case concerning the allocation of parental responsibilities. These limitations ensure that decisions made in intact families where there has been no prior intervention by the court may not be challenged.

Further, one of the relevant factors in determining a child's best interests is the "wishes of the child's parents as to parenting time." - Section 14-10-124(1.5)(a)(D), C.R.S. 2001; see In re Marriage of Garst, 955 P.2d 1056 (Colo.App.1998). And, the best interests standard, which is the guiding principle in awarding custody even in disputes involving nonparents, is subject to the presumption that the biological parent has a first and prior right to custody. That presumption may be rebutted by evidence establishing the welfare of the child is better served by granting custody to a nonparent. In re Custody of C.C.R.S., 892 P.2d 246 (Colo.1995).

In light of these principles, we conclude that § 19-1-117 may be construed to embody the protections required by Troxel v. Granville, supra. We recognize that § 14-10-124(1.5), C.R.S.2001, does not specify that the biological parent's decisions are to receive greater consideration than the other relevant factors, and § 19-1-117 also is silent on that point. However, neither statute precludes our interpretation, based on well-settled Colorado case law, that the biological parent's decisions concerning grandparent visitation must carry special weight and significance in the adjudication of the grandparent's petition. We read § 19-1-117 as containing such a requirement. The burden of proof must be such that the parent need not prove that the grandparent visitation would adversely affect the child.

We also decline to elaborate on the precise weight to be afforded a parent's decision regarding grandparent visitation. We anticipate that the appropriate considerations will emerge on a case-by-case basis.

Our conclusion that § 19-1-117 is constitutional is consistent with the result reached in other jurisdictions. See McGovern v. McGovern, 201 Ariz. 172, 33 P.3d 506 (Ariz.Ct.App.2001)(prior precedent did not require the grandparent visitation statute to be invalidated under Troxel, and statute has self-limiting features and, if applied as written with attention to the procedural safeguards required by Troxel, would not imper-missibly intrude on parents' rights); In re Marriage of Harris, 92 Cal.App 4th 499, 112 Cal.Rptr.2d 127 (2001) (review granted Jan. 3, 2002)(concluding grandparent visitation statute not in per se violation of the Due Process Clause and requiring that the statute be construed to require grandparents to show by clear and convincing evidence that lack of visitation would be detrimental to the child); Skov v. Wicker, 32 P.3d 1122 (Kan.2001)(declining to find statute facially unconstitutional and remanding with instructions to apply a presumption in favor of the fit parent and to require the grandparent to prove both that visitation is in the grandchild's best interests and that a substantial relationship with the grandparent already exists); Rideout v. Riendeau, 761 A.2d 291 (Me.2000)(upholding - constitutionality - of grandparent visitation statute because state had a compelling interest in encouraging contact, and statute was sufficiently narrow because it required a sufficient existing relationship between grandparent and child); Brice v. Brice, 133 Md.App. 302, 754 A.2d 1132 (2000)(rejecting mother's claim that grandparent visitation statute is facially unconstitutional and holding that the statute was unconstitutionally applied to facts strikingly similar to those in Troxel); Heltzel v. Heltzel, 248 Mich.App. 1, 638 N.W.2d 123 (2001)(finding custody statute constitutionally infirm as applied because mother had ultimate burden of persuading the court that the child belonged in her custody and remanding for appropriate consideration of mother's fundamental liberty interest in childrearing); Wilde v. Wilde, 341 N.J.Super. 381, 775 A.2d 535 (App.Div.2001){upholding statute's constitutionality, but finding that it had been applied in an unconstitutional manner because determinations of the mother, whose fitness was not contested, did not receive any special weight). See generally George L. Blum, Annotation, Grandparents' Visitation Rights Where Child's Parents are Living, TI A.L.R.5th 99, 1999 WL 740453 (1999).

E.

Mother further argues that § 19-1-117(8), C.R.S.2001, impinges upon a parent's fundamental rights by permitting the court to order reasonable attorney fees to the prevailing party. Because the record before us contains no request or award of fees under this subsection, we do not reach that question.

IL.

Mother next contends the trial court's award of visitation to the grandmother under § 19-1-117 unconstitutionally infringed upon her fundamental rights as a parent because her decisions concerning that issue were given no special weight. Essentially, mother argues that the trial court applied § 19-1-117 in an unconstitutional manner. We conclude that further proceedings are required.

Mother testified that she did not intend to deny visitation to the grandmother, but felt that it should be limited to one day per month and no overnights so that the child's normal routine would not be affected. She said her proposed schedule allowed the child to spend "quality time" with the immediate family as well as with extended family. Based upon a suggestion of the child's therapist to address the child's behavior problems, mother also requested that she be allowed to supervise visitation.

Mother additionally stated specific concerns related to the grandparents' home and grandmother's use of diapers and bottles, which mother felt "infantilized" the child. She specifically requested that grandmother not be allowed to take the child to Cheyenne, Wyoming, to visit relatives because mother's car was not reliable and she would be unable to retrieve the child in the event of an emergency.

Although the trial court discounted many of mother's concerns, it made no findings concerning the child's best interests, did not accord mother's proposed schedule any special weight, and did not address whether and how that schedule would fail to meet the child's best interests. The court also made no findings to support that portion of its order allowing grandmother to take the child to Wyoming over mother's objections.

On this record, we conclude the visitation order must be vacated, and the visitation issue must be redetermined. In its discretion, the trial court may conduct such further proceedings and receive such additional evidence as it deems necessary.

The order is vacated, and the case is remanded for further proceedings.

Judge ROTHENBERG and Judge KAPELKE concur.