text:
    TOWN OF IGNACIO and Colorado Intergovernmental Risk Sharing Agency, Petitioners, v. INDUSTRIAL CLAIM APPEALS OFFICE OF THE STATE OF COLORADO and Diane L. Garner, Respondents.
    No. 01CA2024.
    Colorado Court of Appeals, Div. IV.
    Nov. 7, 2002.
    As Modified on Denial of Rehearing April 10, 2003.

      Ritsema & Lyon, P.C., Susan K. Reeves, Gina L. Gradecki, Colorado Springs, Colorado, for Petitioners.
    No Appearance for Respondent Industrial Claim Appeals Office.
    Dawes and Harriss, P.C., Gail C. Harriss, Durango, Colorado, for Respondent Diane L. Garner.

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

   Opinion by

Judge DAILEY.

In this workers' compensation proceeding, Town of Ignacio and its insurer, Colorado Intergovernmental Risk Sharing Agency (collectively employer), seek review of the final order issued by the Industrial Claim Appeals Office (Panel) upholding the award of medical benefits. We set aside the order and remand for further proceedings.

Diane L. Garner (claimant) sustained an admitted work injury to her left hand on March 2, 1995. Claimant underwent surgeries on her thumb in February and September 1996. The surgeon placed her at maximum medical improvement (MMI) on December 24, 1996, and assigned her an eleven percent upper extremity rating.

Claimant's symptoms worsened, and she returned to the surgeon on February 18, 1998. The surgeon recommended additional treatment and reported that she was no longer at MMI. Claimant therefore filed a petition to reopen on March 30, 1998, and her claim was voluntarily reopened by employer when it filed a general admission of lability on October 9, 1998.

Between claimant's return to the surgeon and the reopening of her claim, the surgeon retired and closed his practice. Employer then referred claimant to another physician, who evaluated her on September 15, 1998. The physician declined to give a surgical opinion because of the complexity of claimant's condition, but recommended further evaluation by x-ray and selective injection under fluoroscopy in an attempt to isolate her symptoms. The injection occurred on October 8, 1998, and on October 9, 1998, the physician reported that claimant required evaluation by a specialist to determine whether additional surgery was needed. The physician opined that the injections had confirmed claimant's pain was emanating from the basilar joint, the site of her prior surgeries.

The hand specialist referred by the physician examined claimant on October 22, 1998. He did not recommend either a fusion or an exploration of the joint, but indicated claimant might consider the latter procedure if she could not live with her pain. The hand specialist did not see claimant again. However, on a form dated February 9, 1999, the hand specialist stated claimant had reached MMI on October 22, 1998.

Following an evidentiary hearing on claimant's request for a change of physician, the Administrative Law Judge (ALJ) concluded that there was a conflict in the evidence among treating physicians regarding whether claimant had attained MMI in light of her worsened condition. The ALJ found that neither the surgeon nor the physician had considered claimant to be at MMI. The ALJ then observed that he had the authority to resolve the conflict as a factual matter and found that claimant was not at MMI. He further determined that because claimant's prior surgeon had retired, a change of physician was necessary. He therefore granted her request and designated the physician as her authorized treating physician.

Employer sought review, but because the ALJ's order did not award benefits, the Panel held that it was interlocutory and dismissed the petition. Subsequently, the matter again came before an ALJ for hearing. The ALJ entered an order requiring employer to pay for the treatment rendered by the physician. On review of that order, employer again contested the prior determination that claimant had not reached MMI for her worsened condition. The Panel upheld the order, and employer now appeals that issue to this court.

Employer contends that the Panel erred in upholding the ALJ's determination that claimant had not reached MMI, based upon the ALJ's resolution of the conflicts in the opinions of the three physicians,. We agree, but conclude further proceedings are necessary.

Section 8-42-107(8)(b)(T) & (ID), C.R.S. 2002, provide that, if either party disputes an MMI finding by "an authorized physician," a division-sponsored independent medical examination (DIME) may be requested, and the opinion of the DIME physician will carry presumptive effect unless overcome by clear and convincing evidence. See Magnetic Eng'g, Inc. v. Indus. Claim Appeals Office, 5 P.3d 385, 388 (Colo.App.2000).

A DIME is a prerequisite to any hearing concerning the validity of an authorized treating physician's finding of MML, and, absent such a DIME, an ALJ lacks jurisdiction to resolve a dispute concerning that determination. See Story v. Indus. Claim Appeals Office, 910 P.2d 80, 82 (Colo.App.1995).

Here, the issue is whether the specialist qualified as an authorized treating physician, for purposes of § 8-42-107(8)(b)(D) & (IT). We conclude that he did.

The specialist was a "treating" physician because he examined claimant not in anticipation of litigation or simply for purposes of providing a disability rating, but to determine whether additional surgery was needed to alleviate claimant's pain. See Miller v. Lake Forest, Inc., 370 So.2d 647, 651 (La.Ct.App. 1979) (rejecting, in workers' compensation action, argument that bills should be disallowed because physicians did not treat claimant: "While these specialists did not provide a course of treatment, they did examine plaintiff for purposes of medical assistance and not merely in preparation for the ... trial."); see also Hester v. Ford, 221 Ala. 592, 130 So. 203, 206 (1930) (medical malpractice action: "In common parlance and often in the law, 'treatment' is the broad term covering all the steps taken to effect a cure of the injury or disease; it includes examination and diagnosis as well as application of remedies."); Robinson v. Howard Hall Co., 219 So.2d 688, 691 (Fla. 1969) (workers' compensation case: "The statute in requiring remedial treatment to be provided an employee contemplates that a preliminary medical examination may be necessary as an incident to such treatment.").

Further, the specialist qualified as an "authorized" treating physician because claimant had been referred to him by another authorized treating physician, namely the physician selected by employer. See Bestway Concrete v. Indus. Claim Appeals Office, 984 P.2d 680, 684 (Colo.App. 1999) ("[The designation 'authorized treating physician' includes not only those physicians to whom an employer directly refers a claimant, but also those to whom a claimant is referred by an authorized treating physician.").

Because the specialist was an "authorized treating physician," under the plain language of § 8-42-107(8)(b), C.R.S. 2002, the exclusive method of challenging his MMI opinion was through a DIME. The ALJ could not, then, determine MMI, in derogation of the specialist's opinion, based on the opinions of the other two authorized treating physicians in this case.

In finding to the contrary, the ALJ and the Panel relied upon Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App.1996). However, that case was decided under the former version of § 8-42-107(8)(b), which required a DIME to dispute an MMI determination made by "tke authorized treating physician who has provided the primary care" to the employee (emphasis added). In Blue Mesa Forest, a conflict arose when the primary treating physician retracted his opinion of the date of MMI and adopted a later date as determined by a specialist. The division in that case found that, where the authorized primary care treating physician issues conflicting opinions concerning MMI, it is for the ALJ to resolve the conflict, and the ALJ may do so without requiring the claimant to obtain a DIME. Blue Mesa Forest v. Lopes, supra, 928 P.2d at 833.

The Blue Mesa Forest case, then, involved the resolution of conflicting opinions of one physician, and the ALJ therefore was not faced with a conflict involving the competing MMI determinations of multiple treating physicians.

The division in Blue Mesa Forest never specifically stated that an ALJ has the power, in the absence of a DIME, to decide such contests. Although the division generally relied on Burns v. Robinson Dairy, Inc., 911 P.2d 661, 662 (Colo.App.1995), which recognized an ALJ's authority to disregard an otherwise conclusive release to work by the attending physician when multiple attending physicians had issued conflicting opinions, that case concerned the termination of temporary disability benefits, The statutory process involved in the termination of temporary disability benefits based upon a release to work does not afford any opportunity similar to the DIME procedure to challenge the effect. of the release. See Bestway Concrete v. Indus. Claim Appeals Office, supra, 984 P.2d at 685.

Consequently, we conclude that the Panel erred in relying on Blue Mesa Forest (or even Burns ) as legal authority for the proposition that an ALJ can make MMI determinations based on differences in the opinions of authorized treating physicians.

The remaining question is whether the specialist who treated claimant made an MMI determination that was challengeable, if at all, only through the use of a DIME. Although the specialist purported to make an MMI determination, he also stated that claimant might seek additional surgery if her pain continued, implying that claimant was not at MMI. See $ 8-40-201(11.5), C.R.S. 2002 (defining MMI as that "point in time when any medically determinable physical or mental impairment as a result of injury has become stable and when no further treatment is reasonably expected to improve the condition"); Magnetic Eng'g, Inc. v. Indus. Claim Appeals Office, supra, 5 P.3d at 388 (recommendation that surgery be explored provides sufficient support for an inference that the physician did not believe MMI had been reached).

We conclude that the specialist's report was ambiguous with respect to MMI and that the matter must be remanded for a factual determination as to whether the specialist found claimant to be at MMI. Cf. MGM Supply Co. v. Indus. Claims Appeals Office, 62 P.3d 1001, 1005 (Colo.App. 2002)(ALJ must resolve ambiguities in DIME physician's report regarding whether claimant is at MMI).

The order of the Panel is set aside, and the case is remanded with directions that the ALJ determine whether, consistent with the views expressed in this opinion, claimant was at MMI and, accordingly, whether claimant was entitled to the relief requested. In resolving these issues, the ALJ has the disceretion to receive further evidence.

Judge TAUBMAN and Judge CRISWELL concur.


source: Caselaw Access Project

author: Judge TAUBMAN.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. William Marshall DALTON, Defendant-Appellee.
    No. 01CA1624.
    Colorado Court of Appeals, Div. V.
    Nov. 7, 2002.
    Certiorari Denied May 27, 2003.

      Jeanne M. Smith, District Attorney, Gordon R. Denison, Deputy District Attorney, Amy Folsom Mullaney, Deputy District Attorney, Sherri R. Gryboski, Deputy District Attorney, Colorado Springs, Colorado, for Plaintiff-Appellant.

      David S. Kaplan, Colorado State Public Defender, Shann Jeffery, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellee.
   Opinion by

Judge TAUBMAN.

The People appeal the trial court's order permitting defendant, William Marshall Dalton, to withdraw his guilty plea. We vacate the order and remand for reinstatement of the judgment of conviction.

The prosecution filed a direct criminal information against defendant in district court in 1998, charging him with sexual assault on a child by one in a position of trust (count one) and sexual assault on a child as part of a pattern of sexual abuse (count two). Count one alleged events occurring from December 1, 1991 to June 1, 1993, and count two alleged events occurring from December 1, 1991 to December 3, 1997. Both counts concerned alleged sexual assaults on the same victim. Defendant was eighteen years old when the charges against him were filed, but a juvenile when the charged offenses occurred.

Defendant entered into a plea bargain under which he pleaded guilty to count one and the prosecution agreed to dismissal of count two. Defendant was sentenced to ten years in the Department of Corrections.

Defendant subsequently filed a postconviction motion to vacate the plea agreement, alleging the district court lacked jurisdiction over count one. Defendant argued that the requirements of the direct filing statute were not satisfied because he was under the age of fourteen during the entire period of that alleged offense. At the hearing on the motion, defense counsel argued that jurisdiction must attach to "all of [the information] or none of it." The trial court agreed and vacated the resulting sentence. The court ordered defendant's plea of guilty withdrawn, reinstated count two, and set a trial date.

I. Appellate Jurisdiction

As a preliminary matter, we address defendant's contention that this court lacks jurisdiction to hear the prosecution's appeal because the trial court's order does not constitute a final judgment. We disagree.

Section 16-12-102(1), C.R.S.2002, provides in pertinent part that "[aluy order of a court that either dismisses one or more counts of a charging document prior to trial or grants a new trial after the entry of a verdict or judgment shall constitute a final order that shall be immediately appealable." Further, a trial court's order granting a defendant's postconviction motion also constitutes a final, appealable order. Crim. P. 85(c)(8).

Here, although defendant's postconviction motion relied on Crim. P. 12(b)(@), which applies to trial proceedings, the motion is authorized pursuant to Crim. P. 85(c)(2)(IID). Therefore, we will consider defendant's motion as a Crim. P. 85(c) motion. See DePine-da v. Price, 915 P.2d 1278 (Colo.1996)(habeas corpus petition treated as a Crim. P. 85 motion based on the substantive issues raised, instead of the label of the pleading). As such, the prosecution: properly appeals from the trial court's order. See § 16-12-102(1).

Accordingly, the trial court's ruling granting defendant's motion constituted a final judgment, and we have jurisdiction to hear this appeal.

. II. Due Process and Ex Post Facto Clauses

In support of the order appealed here, defendant contends the district court also lacked jurisdiction over count two. He argues that applying the direct filing statute in effect in 1997 to him violates the Due Process and Ex Post Facto Clauses of the United States and Colorado Constitutions because the period of the alleged offense included several years before he turned fourteen and was ineligible for direct filing in district court. In addition, defendant argues that the rule of lenity requires application of the least oppressive direct filing statute when the period of a charged offense is subject to different direct filing laws. We reject both arguments.

In 1997, the direct filing statute provided in pertinent part:

A juvenile may be charged by the direct filing of an information in the district court or by indictment only when:
(II) The juvenile is fourteen years of age or older and: «
(A) Is alleged to have committed a felony enumerated as a crime of violence pursuant to section 16-11-8309 [now § 18-1.3-406], C.R.S.. ...

Colo. Sess. Laws 1996, ch. 283, § 19-2-517 at 1640 (now codified with amendments as Seetion 19-2-517(1)(a), C.R.S.2002). Because sexual assault on a child is a crime of violence, this direct filing statute applied to defendant. In contrast, the version of the statute in effect until July 1998 provided different criteria for direct filing, and those criteria did not apply to defendant.

A. Due Process and Ex Post Facto Violations

Defendant first contends that applying the direct filing statute in effect in 1997 to him constitutes an impermissible retroactive application. We disagree.

1. Due Process °

"Retroactive application of a procedural rule may violate due process if the judicial action enlarges the scope of a erimi-nal statute so as to define previously lawful behavior as criminal or if the procedural changes impair the defendant's substantial rights." People v. Benney, 757 P.2d 1078, 1081 (Colo.App.1987) (citation omitted). The direct filing statute provides a procedural mechanism whereby 'juveniles may be charged as adults if the statutory criteria are satisfied. See Myers v. District Court, 184 Colo. 81, 518 P.2d 836 (1974) (interpreting Colo. Sess. Law 1978, ch. 110, § 221-4 at 385, the predecessor to § 19-2-517(1)(a)).

Here, defendant contends that his substantial rights were impaired because he would have been ineligible for direct filing during the period alleged in count one, yet he was eligible as of 1997. Defendant relies on the fact that sexual assault committed as part of a pattern of sexual abuse, as charged in count two, is a sentence enhancement provision, which increases the felony classification. People v. Whitley, 998 P.2d 31, 33 (Colo.App.1999); People v. Bowring, 902 P.2d 911, 915-16 (Colo.App.1995). He argues that the date for establishing jurisdiction for count two therefore is the alleged date of completion of count two, December 3, 1997. He further asserts that the prosecution asserted in both briefs and oral argument that the predicate act for count two occurred sometime during the December 1991 to June 1998 period alleged in count one. Thus, his argument goes, the direct filing statute in effect in 1997 cannot be retroactively applied to him to confer jurisdiction on the district court.

On the contrary, the information alleged only that the dates of the pattern conduct spanned the entire period alleged in count two. In fact, count two did not allege specific dates for either the predicate act or the pattern conduct. See Colo. Sess. Laws 1995, ch. 240, § 18-3-405(2)(d) at 1252 (now codified with amendments as § 18-8-405(2)(d), C.R.S.2002)(the pattern of sexual abuse charge need not include a specific date or time except that the pattern acts must have been committed "within ten years prior to the offense charged in the information or indictment").

Because the direct filing statute in effect in 1997 did not define previously lawful behavior as criminal or impair defendant's substantive rights, its application did not violate his right to due process. Here, the direct filing statute in effect in 1997 does not define previously lawful behavior as eriminal, but instead enumerates the requirements for a juvenile to be tried as an adult. Further, the procedural changes did not impair defendant's substantial rights because there is no fundamental right to be treated as a juvenile in a criminal case, People v. Hughes, 946 P.2d 509, 514 (Colo.App.1997), overruled on other grounds by Valdez v. People, 966 P.2d 587 (Colo.1998), and the statute merely establishes in which court defendant could be tried.

2. Ex Post Facto Clause

"When a law either imposes punishment for an act that was not a crime when it was committed or makes the punishment for a crime more onerous than the punishment when the crime was committed, it violates the constitutional prohibitions against ex post facto laws." People v. Luman, 994 P.2d 432, 436 (Colo.App.1999).

However, a statute is not rendered unconstitutional as an ex post facto law merely because some of the facts upon which it operates occurred before the adoption of the statute. People v. Bastian, 981 P.2d 203 (Colo.App.1998).

The critical question in an ex post facto analysis is whether a statutory amendment changes the legal consequences of-acts completed before the effective date of the relevant statute. Where some of the elements of an offense are committed before the effective date of a new statute, but the crime is not completed until after the new statute's effective date, application of the new statute does not violate the Ex Post Facto Clause. See People v. Bastian, supra, 981 P2d at 206.

The cireumstances here are similar to those in People v. Bowring, 902 P.2d 911 (Colo.App.1995), where a division of this court held that even though one of the incidents relied on by the prosecution to prove pattern sexual assault may have occurred before the effective date of the statute, there was no ex post facto violation. Cf. People v. Graham, 876 P.2d 68 (Colo.App.1994)(ex post facto violation present in pattern sexual assault prosecution where verdict requiring an enhanced sentence could have been based on an act which preceded passage of the statute in question).

Here, the direct filing statute in effect in 1997 merely applied a procedural mechanism-the direct filing statute-to some facts occurring before its adoption. Since the pattern alleged in count two was not completed until after the effective date of the 1997 amendment to the direct filing statute, there was no ex post facto violation. People v. Bastian, supra.

Thus, we reject defendant's argument that the district court lacked jurisdiction of count two.

B. Rule of Lenity

Defendant also argues that application of the 1997 direct filing statute violates the rule of lenity. Again, we disagree.

The rule of lenity applies when a statute is ambiguous; it does not require a court to show leniency. People v. Flagg, 18 P.3d 792, 795 (Colo.App.2000).

Here, defendant contends that there is ambiguity as to which version of the direct filing statute applies to him. We have previously concluded that the direct filing statute in effect in 1997 applies to defendant. That statute is not ambiguous.

Accordingly, we conclude the rule of lenity does not apply.

III,. Ancillary Jurisdiction

The People contend the trial court erred in finding that it lacked jurisdiction to accept a plea of guilty to count one, which did not independently authorize direct filing, after it dismissed count two, which authorized direct filing. The People concede that count one did not independently provide the district court with jurisdiction over defendant, but maintain the court had ancillary jurisdiction over count one because it indisputably had jurisdiction under count two. We agree.

Where an appellant raises questions of law on appeal, the trial court's ruling is reviewed de novo. People v. Melillo, 25 P.3d 769, 777 (Colo.2001).

No Colorado appellate decision has addressed the doctrine of ancillary jurisdiction in eriminal cases. However, a division of this court addressed a similar situation in People v. Hughes, supra, where the defendant was acquitted of the charge that authorized the direct filing, but was convicted of charges that would not independently have given the district court subject matter jurisdiction. The Hughes division concluded that, with respect to direct filing, the district court's subject matter jurisdiction is triggered by the seriousness of the charges, not by any resulting conviction therefrom. People v. Hughes, supra, 946 P.2d at 513; see also A.C. v. People, 16 P.3d 240, 242 (Colo.2001)("the legislature has chosen to permit a juvenile to be charged, tried and sentenced as an adult under cireumstances where the severity of the crime mandates it").

Here, while defendant disputes the applicability of the direct filing statute in effect in 1997, it is undisputed that the crime charged in count two required sentencing under the crime of violence statute. Therefore, the trial court had jurisdiction over that count under the direct filing statute.

It follows that the district court had ancillary jurisdiction over count one because it had jurisdiction over count two, a crime mandating sentencing under the crime of violence statute. This conclusion is consistent with Commonwealth v. Archer, 722 A.2d 203, 206 n. 8 (Pa.Super.Ct.1998), where the prosecution directly filed murder charges, among others, against a juvenile defendant in adult eriminal court, and he was acquitted of murder. The court concluded, "When murder charges are filed against a minor in adult court, the court has jurisdiction over other charges filed and arising from the same criminal transaction." See also Jensen v. State, 328 Ark. 349, 352, 944 S.W.2d 820, 821 (1997) ("Jurisdiction is determined from the pleadings. Subject-matter jurisdiction 'is tested on the pleadings and not the proof' The General Assembly has not based court assignment in juvenile cases upon the nature of the offense 'committed' but upon that which is charged." (citations omitted)).

Our conclusion that the district court had ancillary jurisdiction to hear the charges in count one also is supported by the rule of mandatory joinder. See Marquez v. County Court, 719 P.2d 737 (Colo.App.1986)(misdemeanor and traffic charges should not be tried separately in county and district courts because the juvenile court had jurisdiction to consider both charges under the mandatory joinder statute). The mandatory joinder statute requires joinder of multiple offenses in a single prosecution "if they are based on the same act or series of acts arising from the same criminal episode." Section 18-1-408(2), C.R.S.2002.

" '[A] series of acts arising from the same criminal episode' would include physical acts that are committed simultaneously or in close sequence, that occur in the same place or closely related places, and that form part of a schematic whole." People v. Jones, 967 P.2d 166, 169 (Colo.App.1997).

In light of the mandatory joinder statute, both parties agree that counts one and two should be tried together, but disagree in which court defendant should be tried. Defendant contends the charges should be tried in juvenile court, while the prosecution argues both counts should be tried in district court. Defendant asserts that the rule of mandatory joinder does not confer jurisdiction on the district court because count two did not indicate when the predicate act occurred and therefore both the predicate and prior sexual assaults could have occurred during the same time frame as count one. However, both counts were based on the same act or series of acts stemming from the same eriminal episode, even though the criminal episode was alleged to have occurred over different periods of time.

We recognize the competing policy considerations expressed in the Children's Code. On the one hand, the General Assembly intended that certain charges against a juvenile be heard in juvenile court, and it provided that court with exclusive jurisdiction. Section 19-1-104(1)(a), C.R.S.2002. On the other hand, a contrary intent is evidenced by the direct filing mechanism in the Children's Code, which allows juveniles to be tried as adults. Section 19-2-517, C.R.S. 2002. In balancing these policy considerations, we conclude that the prevailing legislative intent is that all charges involving a minor be resolved in adult court when the requirements of the direct filing statute are satisfied as to any charge. To conclude otherwise would frustrate the policy that allows certain offenses to be resolved in adult erimi-nal court based on the seriousness of the offenses involved where a juvenile defendant is charged with several offenses, not all of which qualify for direct filing in district court.

IV. Continuing Jurisdiction

The People further contend that once the district court had jurisdiction over count two, its jurisdiction continued until final disposition of the case, even after count two was dismissed as part of the plea bargain. We agree,

"Onee charges are directly filed in district court against a juvenile which include and are based on allegations of a crime of violence, the sentencing of that juvenile for any conviction resulting from those charges must be done by the district court." People v. Hughes, supra, 946 P.2d at 513.

A defendant admits wrongdoing by pleading guilty. "After the court accepts a knowing and voluntary plea, 'nothing remains but to give judgment and determine punish ment." People v. Schneider, 25 P.3d 755, 760 (Colo.2001)(quoting Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711-12, 23 L.Ed.2d 274, 279 (1969)).

Here, defendant's guilty plea was the functional equivalent of a conviction on count one. ° As in People v. Hughes, supra, the district court was required to sentence defendant because the charges against him included a crime of violence.

Because the district court had jurisdiction over the crime of violence in count two and it had ancillary jurisdiction over count one, we conclude the court's jurisdiction continued until the final disposition, and the district court was required to sentence defendant for any conviction resulting from the charges filed against him.

The trial court's order is vacated, and the case is remanded for reinstatement of the judgment of conviction.

Judge ROTHENBERG and Judge WEBB concur.


author: Judge DAILEY.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Carlos GANDIAGA, Defendant-Appellant.
    No. 01CA0791.
    Colorado Court of Appeals, Div. IV.
    Nov. 7, 2002.
    Certiorari Denied June 2, 2003.

      Ken Salazar, Attorney General, Elizabeth Rohrbough, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    E. Richard Toray, Denver, Colorado, for Defendant-Appellant.

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

   Opinion by

Judge DAILEY.

Defendant, Carlos Gandiaga, appeals from the trial court's order denying his Crim. P. 35(c) motion to vacate his convictions for attempted first degree murder and second degree kidnapping. We affirm.

The evidence presented at trial revealed that, at the behest of a reputed drug lord, defendant and two other men kidnapped the victim and drove him to a remote spot in the mountains. There, defendant and his cohorts got out of the car, which defendant had left running with the key in the ignition. Defendant ordered one of the men to kill the victim, and the man put a rifle to the victim's head and pulled the trigger. The rifle malfunctioned, however, and while the three men were attempting to fix it, the vietim moved into the driver's seat and drove the car away.

Defendant elicited evidence at trial that he told police officers that he acted out of fear of the drug lord and that he intentionally left the car running with the key in the ignition. The jury rejected his duress defense, and the court sentenced him to twenty years incarceration.

On appeal, a division of this court affirmed his convictions. People v. Gandiaga, (Colo.App. No. 98CA1198, July 15, 1999){not published pursuant to C.A.R. 85(f)).

Thereafter, defendant filed a Crim. P. 35(c) motion to vacate his convictions, alleging that his two trial attorneys had been ineffective in: (1) failing to adequately consult with him and investigate the case; (2) allowing him to be subjected to a police interview without either the presence of counsel or receipt of a tangible benefit; (8) failing to discuss a plea offer with him; (4) failing to object to inappropriate evidence and to move for a mistrial; and (5) failing to recognize, research, plead, and present to the jury an additional affirmative defense to the charge of attempted murder. *

After conducting an evidentiary hearing, the trial court denied defendant's motion.

I. Standards of Review

The constitutional right to effective assistance of counsel "is not a guarantee against mistakes of strategy or exercise of judgment in the course of a trial as viewed through the 20-20 vision of hindsight following the return of a verdict in a criminal cage." Dolan v. People, 168 Colo. 19, 22-23, 449 P.2d 828, 830 (1969); see Davis v. People, 871 P.2d 769, 773 (Colo.1994)("Mere disagreement as to trial strategy ... will not support a claim of ineffectiveness.").

To prevail on a claim of ineffective assistance of counsel, a defendant must establish that: (1) counsel's performance fell below the level of reasonably competent assistance demanded of attorneys in criminal cases; and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 694 (1984); see Davis v. People, supra, 871 P.2d at 772.

In assessing the first prong of the Strickland test, courts "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy." " Strickland v. Washington, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694-95 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83, 93 (1955)); see Davis v. People, supra, 871 P.2d at 772.

To establish prejudice under the second prong of the Strickland test, the defendant must demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698; see Davis v. People, supra, 871 P.2d at 772.

To obtain relief, the defendant must prove, by a preponderance of the evidence, each prong of the Strickland test. People v. Russell, 36 P.3d 92, 95 (Colo.App.2001). If a court determines that counsel's performance was not constitutionally deficient, it need not consider the prejudice prong of the ineffective assistance of counsel test. People v. Sparks, 914 P.2d 544, 547 (Colo.App.1996). Similarly, if a court determines that a defendant failed to affirmatively demonstrate prejudice, it may resolve the claim on that basis alone. People v. Garcia, 815 P.2d 937, 941 (Colo.1991).

The trial court determines the weight and credibility to be given the testimony of witnesses in a Crim. P. 85(c) hearing. And when evidence in the record supports the court's findings, its ruling will not be disturbed on review. Kailey v. Colorado State Department of Corrections, 807 P.2d 563, 567 (Colo.1991).

II. Pretrial Contact with Defendant/Pretrial Investigation

Defendant first argues that he was denied the effective assistance of counsel because trial counsel: (1) met with him only one time at the jail prior to trial; and (2) failed to conduct any pretrial investigation. We are not persuaded.

As to the first claim, trial counsel testified, without contradiction, that they met with defendant before and after pretrial hearings at the courthouse and that they contacted defendant by telephone fairly often. In light of this testimony, the trial court's determination that defendant failed to show deficient performance as a result of trial counsel's communication with him is supported by the record.

As to the other claim, a defendant is entitled to a pretrial investigation sufficient to reveal potential defenses and the facts relevant to guilt or penalty; a less than comprehensive investigation is reasonable only to the extent that reasonable professional judgment supports the limits of the investigation. Davis v. People, supra, 871 P.2d at 773; People v. Apodaca, 998 P.2d 25, 29 (Colo.App.1999).

Here, the record reflects that trial counsel reviewed the witness statements and police reports and met often with the lead detective. They did not, however, conduct an independent investigation. Consequently, they did not attempt to find or interview the reputed drug lord or another alleged witness to the kidnapping. Nor did trial counsel attempt to discover the reputed drug lord's criminal history prior to trial. .

Trial counsel explained that they decided not to interview the reputed drug lord based on their assumption that he would only invoke his Fifth Amendment privilege against self-incrimination if contacted. This assumption was based on information from the police that the drug lord would not speak to the police except through retained counsel. Trial counsel also testified that defendant had already made them aware of the drug lord's eriminal history.

Even if we assume that trial counsel's performance was deficient in limiting their investigative efforts solely to obtaining information from the police and their client, we would nonetheless conclude that defendant is not entitled to relief.

At the Crim. P. 35(c) hearing, defendant did not produce any evidence of the willingness of the drug lord or the other witness to testify. Nor did defendant produce any evidence or make an offer of proof with respect to the substance, credibility, or admissibility of their anticipated testimony. Consequently, he has failed to demonstrate how counsel's failure to investigate resulted in any prejudice to him. See People v. Chambers, 900 P.2d 1249, 1252 (Colo.App.1994).

III,. Uncounseled Police Interrogation

Nexﬁ, defendant contends that the trial court erred in not finding trial counsel ineffective for allowing the police to interrogate him in trial counsel's absence and without gaining a benefit in exchange. We disagree.

The trial court determined that, although allowing an uncounseled interview would generally fall below the normal standards of competence, there was no showing of prejudice because the police did not learn anything substantially new or different from what they had learned during two previous interrogations of defendant.

It is the appellant's duty to provide those portions of the record necessary to substantiate the claims of error on appeal. Absent such a record, we must presume that the trial court's ruling was correct. See People v. Bishop, 7 P.3d 184, 188 (Colo.App.1999).

Here, none of the tapes or transcripts of the interrogations was designated as part of the record on appeal. Consequently, we are unable to determine whether the statement obtained during the uncounseled interview was used at trial to discredit defendant. And, without the ability to independently review the statements, we must presume that the trial court correctly ruled that nothing substantially new or different was uncovered in the uncounseled interrogation. Moreover, from the limited record before us, it appears that defendant provided police his exeulpato-ry version-namely, that he intentionally left the car running-only during the uncoun-seled interview. Thus, he may have benefited from that event.

IV. Plea Offer

Defendant also argues that trial counsel were ineffective for failing to advise him of a plea offer. We are not persuaded.

Defense counsel's failure to convey a plea offer to a defendant constitutes deficient performance even though the defendant otherwise receives a fair trial. People v. Perry, 68 P.3d 472, 2002 WL 220850 (Colo.App. No. 98CA2122, Feb. 14, 2002). |

Here, while trial counsel could not specifically recall discussing the plea offer with defendant, they felt certain they had done so. Further, at one point in his testimony, one attorney recalled convincing the prosecution to keep the plea offer open longer to allow defendant more time to consider it. Inasmuch as defendant produced no admissible evidence to the contrary, we, like the trial court, conclude that he has failed to carry his burden of proof with respect to this claim too. See generally People v. Russell, supra, 36 P.3d at 95; cf People v. Fleming, 781 P.2d 1384, 1386, 1388-89 (Colo.1989)(pro-vidency hearing judge testified that, although he could not recall specific advisement, his usual practice was to advise of certain matters).

V. Objections and Mistrial

Defendant asserts that his two trial attorneys were ineffective in failing to object to evidence and to request a mistrial. Again, we disagree.

Initially, defendant argues that trial counsel should have objected to questioning that the trial court subsequently indicated was inappropriate. However, he does not identify with any particularity the questions the trial court considered inappropriate. Consequently, we have no basis for determining whether trial counsel's performance was either deficient or prejudicial to defendant. See People v. Rodriguez, 914 P.2d 230, 250 (Colo.1996)(appellant must inform appellate court both as to specific errors relied upon and as to grounds, supporting facts, and authorities therefor).

Next, the record reflects that trial counsel considered requesting a mistrial when the prosecution improperly inquired about defendant's exercise of his right to remain silent. However, trial counsel decided not to seek a mistrial because, in their view, until then trial had been progressing favorably for the defense. For example, trial counsel had seated a particular juror who they believed would be favorable to the defense, and the victim had provided testimony favoring the duress defense. In light of these considerations, we find no basis for disturbing the trial court's determination that trial counsel passed up the opportunity to request a mistrial based on the plausible strategy of using advantages that might not reeur upon retrial. Cf. People v. Dillard, 680 P.2d 243, 246 (Colo.App.1984)(defense counsel's decisions not to object based on his belief that the prosecutor's remarks did not warrant a mistrial is considered "a valid tactical decision within the discretion of trial counsel").

VI. Additional Affirmative Defense

Next, we reject defendant's contention that trial counsel were ineffective because they failed to recognize, research, plead, and have the jury instructed on an abandonment defense to the charge of attempted murder.

Here, the trial court determined that counsel's failure to pursue an abandonment defense was a matter of trial strategy and that the defense was inapplicable to the facts of this case. Defendant argues otherwise, however, pointing to evidence that: (1) he and the victim had been friends; (2) he had abandoned an earlier opportunity to kill the victim; and (8) he intentionally left the car running. He also points to a conflict in the evidence concerning whether the victim had remained inside, or stepped outside, the car in the mountains.

Defendant would have been entitled to an affirmative defense instruction on abandonment if there were evidence in the record to support the defense. See generally People v. Saavedra-Rodriguez, 971 P.2d 223, 228 (Colo.1998).

Section 18-2-101(8), C.R.S.2002, provides an affirmative defense to an attempted crime when "the defendant abandoned his effort to commit the crime or otherwise prevented its commission, under cireumstances manifesting the complete and voluntary renunciation of his criminal intent."

In People v. Johnson, 41 Colo.App. 220, 222, 585 P.2d 306, 308 (1978), a division of this court recognized that, "even though, in a strict analytical sense, the crime of attempt is complete onee the actor intentionally takes a substantial step towards the commission of the crime, nevertheless, the defense of abandonment is present if he thereafter voluntarily renunciates his criminal intent."

Accordingly, the defense of abandonment may apply at various stages, early and late, in the commission of attempted crimes. However, the defense, which is derived from Model Penal Code § 5.01(4), has its limits:

If ... the actor has put in motion forces that he is powerless to stop, then the attempt has been completed and cannot be abandoned. In accord with prior law, the actor can gain no immunity for his completed effort, as for example when he fires at an intended victim but misses.

Model Penal Code and Commentaries § 5.01 emt. at 860 (1985); see 2 W. LaFave & A. Seott, Substantive Criminal Law § 6.3, at 57 (1986)("Assuming a defense of voluntary abandonment, does there come a point at which it is too late for the defendant to withdraw? Obviously there must be, for it would hardly do to excuse the defendant from attempted murder after he had wounded the victim or, indeed, after he had fired and missed."); see also State v. Smith, 409 N.E.2d 1199, 1201 (Ind.Ct.App.1980)(for abandonment to apply, a defendant must "detach{ ] himself from the eriminal enterprise before the act with which he is charged is in the process of consummation or has become so inevitable that it cannot reasonably be stayed"); Ramirez v. State, 739 P.2d 1214, 1217 (Wyo.1987)("onee a defendant has completed his eriminal effort, it is too late for abandonment").

Here, the evidence relied upon by defendant demonstrates a reluctance to kill the victim and possibly an abandonment of an earlier, discrete opportunity to kill him. However, that evidence does not place in dispute the evidence that the victim escaped only after one of defendant's cohorts, at defendant's command, pointed the gun at the victim's head, pulled the trigger, and the gun malfunctioned. Under these circumstances, we conclude the defense of abandonment was unavailable to defendant as a matter of law. See LaFave, supra, at 53 (defense of abandonment not available "if the defendant fails because of unanticipated difficulties in carrying out the eriminal plan at the precise time and place intended").

Because the facts of the case do not admit of an abandonment defense, trial counsel were not ineffective in failing to pursue it. See People v. Lesslie, 24 P.3d 22, 24-25 (Colo.App.2000).

VIL Cumulative Effect of Attorney Error

Last, defendant contends that the cumulative impact of trial counsel's errors requires reversal. We disagree.

While prejudice may result from the cumulative impact of multiple attorney errors, see Cooper v. Fitzharris, 586 F.2d 1325, 1333 (9th Cir.1978), we conclude that the assumed or actual errors of counsel here were neither so numerous nor so prejudicial as to have deprived defendant of a fair trial. Cf. People v. Caldwell, 43 P.3d 663, 673 (Colo.App.2001)(applying cumulative error doctrine).

Accordingly, the order is affirmed.

Judge VOGT and Justice ERICKSON concur.


author: Judge NIETO.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Anthony J. CARRILLO, Defendant-Appellant.
    No. 01CA1811.
    Colorado Court of Appeals.
    Nov. 21, 2002.
    Ken Salazar, Attorney General, John T. Bryan, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S8. Kaplan, Colorado State Public Defender, Andrea R. Manning, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge NIETO.

Defendant, Anthony J. Carrillo, appeals the trial court's order denying his Crim. P. 35 motion for postconviction relief. We affirm.

In December 1998, defendant entered into a plea agreement under which he pleaded guilty to one count of second degree murder and received a stipulated sentence of thirty-five years in the Department of Corrections (DOC). Defendant was also ordered to pay $13,920.41 in restitution.

In September 2000, the DOC began deducting twenty percent of the deposits into defendant's inmate bank account to apply toward the payment of restitution. Defendant then filed a motion for postconviction relief pursuant to Crim. P. 85(a) & (c). He alleged that the withholdings were illegal because § 16-18.5-106, C.R.S.2002, was being applied to him in violation of the constitutional prohibition against ex post facto laws and his right to due process. The trial court denied the motion without a hearing, concluding that the relief defendant requested is not available under Crim. P. 35. This appeal followed.

Initially we note that defendant's motion does not assert a claim under Crim. P. 35(a). An illegal sentence under Crim. P.35(a) is one that is inconsistent with the terms specified by statutes. People v. Green, 36 P.3d 125 (Colo.App.2001). Here, defendant does not challenge the sentence imposed by the trial court, but rather challenges the actions of the DOC. Thus, Crim. P. 35(a) provides no authority for the trial court to decide the issues raised in this motion.

The People contend that defendant's claim that the DOC is unlawfully withholding sums from his inmate bank account does not allege any of the grounds for postconviction relief under Crim. P. 35(c). The People argue that defendant's claim must be brought in a civil action against the DOC, and therefore, the trial court properly denied defendant's motion. We agree that defendant's claim is not cognizable under Crim. P. 85(c).

"A defendant is entitled to judicial review of a Crim. P. 35 (c) motion as long as the motion states a claim cognizable under that rule and the elaim has not been fully and finally resolved in a prior judicial proceeding." People v. Diaz, 985 P.2d 83, 85 (Colo.App.1999).

Crim. P. 35(c)(2) provides that an application for postconviction review must allege one or more of the following grounds:

(I) That the conviction was obtained or sentence imposed in violation of the Constitution or laws of the United States or the constitution or laws of this state;
(I1) That the applicant was convicted under a statute that is in violation of the Constitution of the United States or the constitution of this state, or that the conduct for which the applicant was prosecuted is constitutionally protected;
(III) That the court rendering judgment was without jurisdiction over the person of the applicant or the subject matter;
(IV) That the sentence imposed exceeded the maximum authorized by law, or is otherwise not in accordance with the sentence authorized by law;
(V) That there exists evidence of material facts, not theretofore presented and heard, which, by the exercise of reasonable diligence, could not have been known to or learned by the defendant or his attorney prior to the submission of the issues to the court or jury,; and which require vacation of the conviction or sentence in the interest of justice;
(VI) Any grounds otherwise properly the basis for collateral attack upon a criminal judgment; or
(VII) That the sentence imposed has been fully served or that there has been unlawful revocation of parole, probation, or conditional release.

Here, defendant does not contend that the restitution portion of his sentence ordered by the trial court is illegal or that restitution was imposed in an illegal manner. Rather, he contends that the DOC is improperly collecting restitution by withholding money from his inmate bank account. Defendant's claim concerns the DOC's action taken under § 16-18.5-106, not the sentence imposed by the trial court.

Section 16-18.5-106 does not require the court to make any findings or enter any orders. It also does not affect the court's calculation of the amount of restitution or the manner of imposing a restitution order on a defendant. The statute only gives directions to the executive director of the DOC concerning the collection of restitution from inmates.

The claim asserted in defendant's motion seeks relief against the DOC rather than relief from the judgment and sentence of the trial court, and therefore, it is a not a claim cognizable under Crim. P. 85(c). See People v. McMurrey, 39 P.3d 1221 (Colo.App.2001) (motion challenging DOC's authority to classify a defendant as a sex offender not appropriate under Crim. P. 85(c)).

Further, DOC has not been made a party or otherwise brought into this case. Because defendant seeks to adjudicate the actions of DOC under § 16-18.5-106, this claim should properly be brought against DOC. See People v. McMurrey, supro; But cf. People v. Lowe, 60 P.3d 753 (Colo App. No. 01CA1876, July 18, 2002)(authority of DOC to act under § 16-18.5-101, et seq., C.R.98.2002, adjudicated under motion to show cause).

Accordingly, we conclude that the trial court correctly denied defendant's motion for postconviction relief.

The order is affirmed.

Judge NEY and Judge KAPELKE, concur.


author: Judge GRAHAM.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Keith RIVERS, Defendant-Appellant.
    No. 00CA2275.
    Colorado Court of Appeals, Div. I.
    Nov. 21, 2002.
    Certiorari Denied June 2, 2003.

      Ken Salazar, Attorney General, Catherine P. Adkisson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Daniel W. Edwards, Denver, Colorado, for Defendant- Appellant
   Opinion by

Judge GRAHAM.

Defendant, Keith Rivers, appeals the judg— ment of conviction entered upon a jury verdict finding him guilty of first degree murder after deliberation. We affirm.

The victim was shot to death outside a tavern. Based on initial information, the police obtained an arrest warrant for L.D.D. However, further investigation implicated defendant, and he was charged with first degree murder after deliberation.

Two eyewitnesses, who testified at trial, positively identified defendant as the shooter, and the police investigation established that the murder weapon was a .25 caliber gun. Defendant argued that the prosecution failed to prove beyond a reasonable doubt that he was the perpetrator, and he suggested that L.D.D. had killed the victim.

To meet its burden of proof, the prosecution sought to introduce, over defendant's objections, the following evidence: (1) defendant was at the tavern on the day of the shooting, and while there, he had a small, shiny gun that he showed to a number of people and pointed at one patron's head; (2) defendant said he wanted to see what it felt like to shoot someone; and (8) defendant stated that "there's going to be some gun smoke." After a pretrial hearing, the trial court concluded that this evidence was admissible.

In the first trial, the jury submitted questions to the court regarding issues of guilt and innocence, and the trial court, on recommendation from defendant, referred the jury to the original instructions. After nearly two and a half days of deliberation, the foreman informed the court that the jury had reached a deadlock as to defendant's guilt or innocence. The trial court then declared a mistrial sua sponte and discharged the jurors. Defendant moved to dismiss on double jeopardy grounds, arguing that the trial court erred in declaring a mistrial sua sponte and in failing to poll each juror concerning the deadlock. The court denied relief.

Before the second trial, defendant renewed his motion to dismiss based on double jeopardy grounds, advancing both the arguments previously raised and the argument that the court should consider a juror's postdeliberation statement that the jury had been split eleven for acquittal and one for conviction. The court declined to consider the juror's statement under CRE 606(b) and denied the motion.

In the second trial, the jury found defendant guilty of first degree murder after deliberation, and he was sentenced to life in the DOC. This appeal followed.

I.

Defendant contends that the second trial constituted double jeopardy and his convietion therefore should be reversed. We disagree.

A.

Defendant first argues that the jury's questions in the initial trial indicated its misunderstanding of the prosecution's burden of proof, and therefore, the trial court erred in referring the jury to the original jury instructions. We are not persuaded.

The doctrine of invited error precludes a party from complaining on appeal of an error that he has injected into the case. People v. Gregor, 26 P.3d 530 (Colo.App.2000). Active participation in the preparation of a response to a jury question, or express agreement with it, bars the participant from arguing that the response constitutes error. People v. White, 64 P.3d 864, 2002 WL 1339115 (Colo.App. No. 99CA2415, June 20, 2002)(citing People v. Bielecki, 964 P.2d 598 (Colo.App.1998)).

Here, during deliberations, the jury requested clarification of the following questions:

(1) If I cannot find Keith Rivers guilty, must I find him not guilty? (2) Do I have another choice or option between guilty and not guilty? In my mind not being able to find him guilty does not make him not guilty. (8) I want to know what happens if we feel we are deadlocked?

Defendant expressly requested that as the response to these questions, the jury be directed to the original instructions. Therefore, defendant cannot now complain that referral to the original instructions was improper.

Furthermore, United States v. Wells, 519 U.S. 482, 117 S.Ct. 921, 137 L.Ed.2d 107 (1997), is not dispositive of this issue, nor is it inconsistent with our holding. There, the doctrine of invited error did not prevent the court from addressing a question raised on certiorari, although the court observed that a party's request for a particular jury instruction is one of several factors to be considered in determining the merit of an inconsistent position on appeal.

B.

Defendant contends that the trial court erred in declaring a mistrial sua sponte. The contention is unavailing.

When a jury is deadlocked, there is a "manifest necessity" to declare a mistrial and terminate the proceedings. People v. Schwartz, 678 P.2d 1000 (Colo.1984). Factors to be considered in reaching a determination that manifest necessity exists include: (1) the jury's collective opinion that it cannot agree; (2) the length of the trial; (8) the complexity of the issues; (4) the length of time the jury has deliberated; (5) whether the defendant has made timely objections to a mistrial; and (6) the effects of exhaustion or coercion on the jury. People v. Schwartz, supra. In the event of a deadlock, the court may terminate a prosecution sua sponte. Section 18-1-801(2)(b)(IV), C.R.S8.2002. Thus, when a criminal trial is properly terminated by a declaration of mistrial, reprosecution of the accused is not barred by double - jeopardy. People v. Schwartz, supra.

The decision to declare a mistrial is a matter of trial court discretion and will not be disturbed on appeal absent an abuse of discretion prejudicing the defendant. People v. Hayward, 55 P.3d 803 (Colo.App.2002). Some care must be taken when declaring a mistrial to confirm that the jury is in fact deadlocked. People v. Urrutia, 893 P.2d 1338 (Colo.App.1994).

After substantial deliberation, the jury submitted a note to the court reporting that they had "exhausted [their] efforts in attempting to reach a unanimous decision." Aided by suggestions from counsel, the court asked the jury whether it was deadlocked over guilt or innocence or degree of guilt. Defendant then suggested that deadlock should prompt a jury poll. The court determined that further deliberations would be futile when the foreman confirmed that the jury was deadlocked over guilt or innocence.

Because the trial court confirmed that meaningful progress toward a verdict had ceased, and it could observe first-hand the jury's responses to inquiries, we will not disturb its exercise of discretion in declaring the mistrial. See People v. Lewis, 676 P.2d 682 (Colo.1984).

C.

Defendant's contention that the jury must be polled in event of deadlock is a novel suggestion unsupported by reported decisions in Colorado.

Defendant cites Crim. P. 31(d) as support for his position that each juror should be polled by the court before declaring a mistrial. However, Crim. P. 831(d) specifically applies "when a verdict is returned" and contains no direction to poll jurors prior to a verdict. Although the rule contemplates that a juror may disagree with a verdict, thereby permitting the court to direct further deliberations or to discharge the jury, the rule contains no provision for the situation where the jury reports that it cannot, and likely will not, reach a verdict. The very reason for polling the jury-confirming that the verdict is unanimous-is obviated by the revelation that a lack of unanimity precludes a verdict.

Contrary to defendant's allegations, a court may declare a mistrial without further questioning the jury if the record supports the determination that the jury is unlikely to reach a unanimous verdict. See People v. Urrutia, supra (court properly de-elared a mistrial without questioning the jury in open court after receiving a note from the jury that it was deadlocked).

Here, the communications from the jurors support the determination that progress toward a unanimous verdict was unlikely. Thus, we perceive no abuse of discretion in the trial court's decision not to poll individual jurors. Cf. United States v. Jefferson, 258 F.3d 405 (5th Cir.2001)(control over the trial proceedings is within the discretion of the trial court). Indeed, the very result sought by defendant's request to poll was achieved when the court twice sent the jury back to deliberate before it was ultimately discharged.

D.

Defendant also contends that the trial court erred in finding that CRE 606(b) precluded it from considering a juror's statement when ruling on the motion to dismiss. We reject this contention. '

CRE 606(b) provides, in pertinent part:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict ... except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jurors' attention or whether any outside influence was improperly brought to bear upon any juror.

Juror testimony divulging juror deliberations, thought processes, confusion, mistake, intent, or other grounds for impeaching the verdict is excluded under CRE 606(b). These restrictions emanate from the common law traditions of preserving the freedom and integrity of jury deliberations, stability in the judicial process, and finality of verdicts and of protecting jurors against annoyance, embarrassment, and coercion. Stewart v. Rice, 47 P.3d 316 (Colo.2002).

Here, defense counsel reported that, after the jury was discharged, a juror informed him that the jury was split with a vote of eleven for acquittal and one for conviction and that the jurors did not know that the vote prior to the mistrial was going to be the final vote. We note that there is no affidavit from the juror in the record; the statement is only included in defendant's motion to dismiss. See Stewart v. Rice, supra.

The court refused to consider the juror's statement, holding that under CRE 606(b), it was impermissible to inquire into the juror's thought processes. Defendant argues that CRE 606(b) should not apply here because the inquiry is not whether the verdict is valid, but rather whether the trial court erred in declaring a mistrial.

Colorado courts have not specifically addressed the issue of whether CRE 606(b) applies to deliberations prior to a verdict. We determine that it does.

The integrity of jury deliberations and assurance that jurors will be protected from coercion are no less important in the process of attempting to reach a verdict than they are in the process of polling a jury onee the verdict is reached. To hold otherwise would disserve the purpose of CRE 606(b) and expose individual jurors to potential harassment or pressure that the rule was designed to avoid.

Defendant has not suggested that some extraneous prejudicial information or outside influence tainted the deliberation process. Instead, defendant contends that the court erred in declaring a mistrial in the first instance and compounded this error by refusing to consider statements from the jury which would presumably impeach the foreman's report that the jury was deadlocked, However, the record contains no information indicating that the jury was close to rendering a verdict. In fact, the statements which defendant claims were excluded in error actually corroborate the foreman's representation that the jury was deadlocked.

We therefore conclude that the trial court properly excluded the juror's statements under CRE 606(b) when ruling on defendant's motion for dismissal.

IL.

Defendant next contends that, because the trial court erred in admitting "other act" evidence under res gestae principles and CRE 404(b), his conviction should be reversed or the case remanded for a new trial. We disagree.

A.

Defendant argues that the trial court erroneously applied the res gestae theory to admit evidence that, on the day of the shooting, he was at the tavern; possessed a shiny, small gun; and stated to a bar patron that there was "going to be some gun smoke." We are not persuaded.

When evidence occurs "contemporaneously with or is part and parcel of the crime charged," it is properly admitted under the res gestae theory. People v. Czemerynski, 786 P.2d 1100, 1109 (Colo.1990). Such evidence includes events closely related in time and nature to the offense charged. People v. Martinez, 24 P.3d 629 (Colo.App.2000).

To be admissible, res gestae evidence must be relevant, and its probative value must not be substantially outweighed by the danger of unfair prejudice. We review such evidence in the context of the entire record to determine whether it adversely affected the defendant's position. People v. Mack, 33 P.3d 1211 (Colo.App.2001).

Res gestae is not subject to the procedural requirements of evidence introduced pursuant to CRE 404(b), People v. Young, 987 P.2d 889 (Colo.App.1999), and thus, no cautionary instruction is necessary. People v. Rudnick, 878 P.2d 16 (Colo.App.1993).

A determination on the admissibility of res gestae evidence will not be disturbed on appeal unless the trial court abused its discretion. People v. Mack, supra.

Witness TB. testified that defendant followed him into the bathroom at the tavern in the late afternoon on the day of the shooting, flashed a small silver gun at him, and stated, "there's going to be some gun smoke."

The court admitted this evidence as res gestae, finding that the incident occurred on the same day, in the same place, and less than ten hours before the murder. The court also admitted this evidence under CRE 404(b), noting that the incident concerned a relevant matter and that the jury "could make the logical and relevant inference, and not just the bad character inference." The court gave a general limiting instruction that the testimony was being offered only for the purpose of proving identification, intent; plan, preparation, knowledge, or absence of mistake or accident.

Witness J.N. testified that he had seen a man he knew only as "baby face" with a small silver gun in the tavern on the evening of the shooting. There was no attempt during J.N.'s testimony to identify defendant as "baby face," although other evidence was received which suggested that defendant was known by that alias.

The court admitted this evidence both as res gestae and under CRE 404(b). The court noted that the evidence was logically relevant, the jury could determine that it was offered for the sole purpose of identification, and the evidence was not unfairly prejudicial. No limiting instruction was given.

Here, the TB. and J.N. incidents occurred at the same place, on the same day, and within ten hours of the shooting. This evidence directly concerns defendant's intent and deliberation, both elements of first degree murder, as well as defendant's identity and opportunity and motive to commit the crime. The evidence provided the jury with a full and complete understanding of the events surrounding the criminal episode and defendant's participation in it.

There was considerable testimony, including T.B.'s testimony, that defendant was known to some bar patrons as "baby face." That connection supported the admission of the evidence, and it was up to the jury to determine its weight. See People v. Gilbert, 12 P.3d 331 (Colo.App.2000).

Nor are we persuaded that the evidence is unfairly prejudicial. The other evidence against defendant was overwhelming, and therefore, there was little risk that the testimony admitted could have formed an improper basis for the jury's decision. See People v. Mack, supra.

Furthermore, the trial court properly instructed the jury that the T.B. incident should only be considered for limited purposes under CRE 404(b). Although it was not necessary to give this limiting instruction because of the res gestae nature of the evidence, to the extent that it limited the jury's consideration of the evidence, the instruction inured to defendant's benefit.

We therefore conclude that the trial court did not abuse its discretion in admitting the challenged evidence as res gestae. Because we determine that the T.B. and J.N. incidents were admissible as res gestaé evidence, we need not consider the CRE 404(b) exclusion issue as it relates to these incidents. See People v. Davalos, 30 P.3d 841 (Colo.App.2001).

B.

. Defendant also contends that the court erred in admitting evidence under CRE 404(b) that, on the day of the shooting and at the tavern, he pointed a small, shiny gun at witness W.F.'s head and told him that he wanted to know what it felt like to shoot someone. We disagree.

Evidence of other bad acts is admissible only if it is logically relevant apart from an inference that the defendant acted in conformity with the character trait and if the probative value of the evidence is not substantially outweighed by unfair prejudice. CRE 404(a); People v. Rath, 44 P.3d 1033 (Colo.2002)(citing People v. Spoto, 795 P.2d 1314 (Colo.1990)).

The prosecution must show that: (1) the evidence relates to a material fact; (2) the evidence has logical relevance by tending to make the material fact more probable; (8) the logical relevance is independent of an intermediate inference that the defendant has a bad character, which would be employed to support a further inference that the defendant acted in conformity with his bad character; and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. People v. Spoto, supra.

A trial court has substantial discretion in deciding questions concerning the admissibility of evidence, and therefore the trial court's rulings will not be overturned unless there is an abuse of discretion. People v. Duncan, 33 P.3d 1180 (Colo.App.2001).

WF. testified that on the afternoon of the shooting, "someone" sat down with him at the bar and showed him a "shiny object" that "could have been a gun." Before this testimony was offered, the court cautioned the jury to consider it only for the limited purpose of identification.

To explain vague testimony, the prosecution sought to introduce T.B.'s testimony that defendant, whom he also knew as "baby face," had pulled out a gun and pointed it at W.F. on the day of the shooting. T.B. stated that when defendant left, T.B. asked W.F. what had happened, and W.F. told T.B. that defendant told him "he wanted to see what it felt like to shoot somebody."

The trial court concluded that the evidence regarding the W.F. incident was "a distinct transaction" that could not be directly tied to the murder that took place at 10:30 that night and was therefore only admissible under CRE 404(b). The court gave a general CRE 404(b) limiting instruction before this testimony from T.B. Defendant objected, stating that the instruction should have indicated that the testimony was only being offered for the purpose of identification, but declined a corrected instruction. After T.B.'s testimony, the court gave an instruction that the testimony was offered only for the limited purpose of identification. Before the jury began deliberations, the trial court gave a final limiting instruction.

The principal issue at trial was the identity of the perpetrator of the offense. The W.F. incident evidence was material to the determination whether it was defendant who committed the crime. Defendant's presence at the tavern on the day of the shooting and his possession of a gun on that date are relevant to establish that he had the necessary means and opportunity to commit the erime, and to rebut defendant's theory that L.D.D. was the perpetrator. Finally, there is some nexus between the murder weapon and W.F.'s observations. Thus, we agree that the W.F. incident related to a material fact of the case independent of an intermediate inference that defendant was a man of bad character.

We also agree that the probative value of the evidence was not substantially outweighed by any unfair prejudicial impact, especially given the trial court's multiple limiting instructions to the jury. We presume that the jury followed the instructions because there is nothing in the record to suggest otherwise. See People v. Martinez, supra. Furthermore, there was ample evidence against defendant, and it was the jury's function to assess the credibility of the witnesses and the weight of the evidence with a view to determining whether defendant's guilt had been established beyond a reasonable doubt. See People v. Gilbert, supra.

In light of the significance of the other act evidence to the critical issue of identity, we cannot say that the trial court erred in its evidentiary ruling.

The judgment is affirmed.

Judge METZGER and Judge MARQUEZ concur.


author: Judge VOGT.

text:
    Sammuel C. DONELSON, Plaintiff-Appellant, v. Brad C. FRITZ, Defendant-Appellee.
    No. O1CA0TTT.
    Colorado Court of Appeals, Div. IV.
    Nov. 21, 2002.

      Leventhal, Broézvn & Puga, P.C., James E. Puga, Anthony Viorst, Denver, CO, for Plaintiff-Appellant. -
    'Pryor, Johnson, Montoya, Carney & Karr, P.C., Robert W. Carney, Elizabeth C. Moran, Englewood, CO, for Defendant-Appellee.
   ~ Opinion by

Judge VOGT.

In this action for damages arising out of an automobile accident, plaintiff, 'Sammuel C. Donelson, appeals the judgment entered on a jury verdict in favor of defendant, Brad C. Fritz. We affirm.

Defendant ran a red light and struck a car. That car, in turn, hit plaintiff's car. Plaintiff sued to recover damages for his injuries. The jury found that plaintiff had not incurred medical expenses in excess of the $2,500 statutory threshold and accordingly returned a verdict for defendant.

I. Batson Issues

Plaintiff first contends that the trial court erred in failing to sustain his challenges to defendant's exelusion of jurors on account of race, gender, and disability. We disagree.

A. Race

The Equal Protection Clause of the Fourteenth Amendment prohibits the use of peremptory challenges to discriminate against potential jurors based on race. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Valdez v. People, 966 P.2d 587 (Colo.1998). This prohibition is applicable in civil as well as criminal cases. Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991); Middleton v. Beckett, 960 P.2d 1213 (Colo.App.1998).

' [3] Batson outlines a three-step process for evaluating claims of racial discrimination in jury selection. The first step requires that the challenging party make a prima facie showing that the other party excluded a potential juror because of race. The prima facie standard is not high and requires only evidence sufficient to raise an inference that discrimination occurred. Further, this issue generally becomes moot onee the court has gone through the second and third steps in the Batson analysis. Valdes v. People, supra.

If the challenging party establishes a prima facie case, the burden shifts to the proponent of the challenged strike to come forward with a race-neutral explanation for it. Although that burden cannot be satisfied merely by denying a racially discriminatory motive, the explanation need not be persuasive or even plausible as long as it is facially race-neutral. Vaides v. People, supra.

If a race-neutral reason is tendered, then the trial court advances to the third and final step, in which it must determine whether the opponent of the strike has proven purposeful racial discrimination. The opponent must have the opportunity to rebut the proponent's race-neutral explanation by showing, for example, that it is pretext. The court must then determine, on the basis of all the evidence before it, whether it can find by a preponderance of the evidence that one or more potential jurors were excluded because of race. Valdez v. People, supra.

On appeal, we review de novo the trial court's ruling on steps one and two of the Batson analysis. However, we afford deference to its ultimate resolution of a Bat-son challenge in step three, reversing only for clear error. Vaides v. People, supra.

When plaintiff, who is African-American, objected to defendant's peremptory challenge to a Spanish-surnamed juror, the trial court found that a prima facie Batson showing had been established and invited defendant to state a race-neutral basis for the exercise of his peremptory challenge. In response, defendant stated that the challenged juror worked with a small company and had expressed concern about having to be at the trial. Further, the juror had only a high school education, was single, and had characterized himself as a buyer.

Arguing that defendant's reasons were pretextual, plaintiff pointed out that defendant had challenged other minorities as well, that defendant had spent no time on voir dire to explore the juror's biases, and that nothing in the challenged juror's responses suggested that he favored one party or the other. The trial court denied plaintiff's challenge.

We agree with the trial court that defendant's explanation for the strike was facially race-neutral. Further, the trial court's ultimate resolution of the Batson challenge was not clearly erroneous. The juror had expressed concern about whether his employer could afford to pay him for work while he was not there. When he was reminded that the employer was obligated to do so, he had responded that his own work was going to sit there until I get back. The reference to the juror as a buyer related to questioning of the venire by counsel to determine whether they would characterize themselves as spenders or savers, a characterization which was apparently perceived as indicative of their willingness to award significant damages. Moreover, the record does not indicate that defendant's questioning of this juror was perfunctory in comparison to his questioning of other members of the venire.

Plaintiff argues on appeal that defendant's reasons were pretextual because other jurors who were not challenged also had scheduling conflicts, had only a high school education, and were single. However, plaintiff did not make this argument to the trial court and thus has not preserved it for appeal. See Valdes v. People, supra (a claim that an excused juror was similarly situated to other jurors must be raised in argument to trial court so that it can be tested and determined as a factual matter by that court).

In sum, we conclude that the trial court did not err in denying plaintiff's Batson challenge based on race.

B. Gender

We further conclude that plaintiff is not entitled to relief based on defendant's asserted exclusion of a juror on the basis of gender.

The principles announced in Batson also apply to gender-based discrimination in jury selection. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994); Valdez v. People, supra, 966 P.2d at 589 n. 7.

At trial, plaintiff objected to defendant's peremptory challenge to a Spanish-surnamed woman, arguing, as he had argued in regard to the juror discussed above, that the challenge evidenced racial discrimination. Defense counsel responded that he had her down as a spender and that, like plaintiff, she was a public school district employee. Plaintiff countered that the juror had expressed the same views regarding damages as other members of the panel and that defendant had not taken time to explore her biases. The trial court found no discrimination based on race and denied the challenge.

In his posttrial motion for judgment notwithstanding the verdict or for a new trial, plaintiff argued for the first time that the removal of this juror was impermissible gender discrimination. He based his contention on a statement made' off the record by defense counsel, before the parties made their record on the Batson issues, that he was merely trying to remove women from the Jury. © -

In his written response to the posttrial motion, defendant's counsel conceded that he did state that he would prefer male jurors, which has been disapproved under J.K.B. v. Alabama, but then stated that the juror had other characteristies and experiences that led him to dismiss her regardless of gender. The trial court denied the posttrial motion without comment.

While a concession by counsel that he removed a juror based on gender could establish a Batson violation in other cireum-stances, we decline to conclude, on this record, that plaintiff is entitled to a new trial on this basis.

When the exclusion of this juror was initially challenged as impermissible racial discrimination, defendant gave a facially race-neutral explanation for excluding her, and the trial court found that her exclusion was not based on racial discrimination. That finding is not clearly erroneous. Although plaintiffs posttrial motion indicates that he was aware, at the time of the on-the-record colloquy regarding this juror, that defense counsel had stated a preference for male jurors, plaintiff did not at that time cite defense counsel's statement as evidence of gender discrimination. Thus, he did not give the trial court a timely opportunity to determine, as a factual matter and on the basis of the entire record, whether defendant's exclusion of the juror was based on gender discrimination. See Valdes v. People, supra.

Although plaintiff argues on appeal that we should adopt a rule that a single discriminatory explanation taints the entire jury selection process regardless of the genuineness of other explanations for the strike, he did not raise that argument in the trial court, either at trial or in his posttrial motion. Therefore, the issue is not preserved for appeal. See Estate of Stevenson v. Hollywood Bar & Cafe, Inc., 832 P.2d 718 (Colo.1992). Moreover, even if we were to view a nonpreserved Batson issue as cognizable under a plain error standard of review in a civil case, we would find no plain error on this record. See Hidalgo v. Fagen, Inc., 206 F.3d 1013 (10th Cir.2000)(trial court's failure sua sponte to find gender discrimination where defendant's counsel stated that he preferred male jurors to female ones did not rise to level of plain error in civil case).

C. Disability

We also do not agree that the trial court erred in rejecting plaintiff's Batson challenge to defendant's exelusion of two jurors based on their disabilities.

Plaintiff alleged that the accident left him with pain and permanent injuries, required him to cut back on his previous work-related and personal activities, and exacerbated his pre-existing medical problems. ~During voir dire, defendant used peremptory challenges to remove from the jury a white female nurse with disabling rheumatoid arthritis and a black man who was disabled on account of a hip condition.

When plaintiff challenged the exclusion of these jurors, defendant gave several reasons for striking them. In each instance, the juror's physical condition was a factor. Defendant expressed concern that the woman's experiences with chronic pain and museulo-skeletal problems could cause her difficulty in sitting through long trial days and posed a risk that she would identify with and be sympathetic to plaintiff's claims of back pain and impairment. Defendant also stated that the man's hip condition could make it difficult for him to concentrate at trial.

After expressing some uncertainty whether Batson had been extended to persons with disabilities, the trial court concluded that it was not improper, in a case dealing with a person with disability and chronic pain, to exclude people with similar conditions. Thus, it denied plaintiff's challenge to the exclusion of these jurors.

Relying on a law review article, David G. Hart and Russell D. Cawyer, Batson and Its Progeny Prohibit the Use of Peremptory Challenges Based upon Disability and Religion: A Practitioner's Guide for Requesting a Civil Batson Hearing, 26 Tex. Tech L.Rev. 109 (1995), plaintiff argues that the trial court should have ruled that Batson prohibited defendant's peremptory challenges based on disability. Plaintiff cites no cases that have so held, and our research has located none. Rather, courts that have decided the question appear to have uniformly rejected the argument plaintiff makes here.

In J.E.B. v. Alabama ex rel. TB., supra, the Supreme Court observed that peremptory challenges made on the basis of group characteristics other than race or gender do not implicate the concerns raised by the exclusion of jurors based on stereotypes about the competence or predispositions of a particular race or gender.

The Seventh Circuit cited that observation when it held, in United States v. Harris, 197 F.3d 870 (7th Cir.1999), that the use of peremptory challenges to exclude disabled jurors did not violate the constitutional rights of the defendant or the jurors. In so holding, the court rejected the argument-similar to that made by plaintiff here-that the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq., established the disabled as a suspect class whose exelusion from juries must be reviewed with heightened scrutiny under a traditional equal protection analysis. The court concluded that disabled persons are not a suspect or quasi-suspect class and that the government could therefore excuse them for any reason rationally related to the selection of an impartial jury. United States v. Harris, supra; see also J.E.B. v. Alabama ex rel. T.B., supra, 511 U.S. at 143, 114 S.Ct. at 1429, 128 L.Ed.2d at 106 (Parties may .,. exercise their peremptory challenges to remove from the venire any group or class of individuals normally subject to 'rational basis' review.).

Like the Harris court, other courts have rejected claims that Batson precludes exclusion of jurors with disabilities. See United States v. Santiago-Martinez, 58 F.3d 422 (9th Cir.1995)(recognition of obese persons as disabled for purposes of ADA does not subject them to heightened scrutiny under Equal Protection Clause and thus does not prohibit peremptory strikes on the basis of obesity); Williams v. State, 634 So.2d 1034 (Ala.Crim.App.1993)(fact that venire member's physical disability or discomfort might hinder her ability to serve on jury was legitimate race-neutral reason for peremptory challenge); State v. Kleypas, 40 P.3d 139 (Kan.2001)(Batson does not prohibit strikes based on alcoholism even though alcoholism meets definition of disability for ADA purposes); People v. Falkenstein, 288 A.D.2d 922, 732 N.Y.S.2d 817 (2001)(no Batson violation to strike disabled juror where prosecutor was concerned that her hearing impairment would affect her ability to assess audiotape evidence).

We agree with the rationale of these decisions and conclude that Batson does not apply to peremptory challenges to persons with disabilities Therefore, even if we assume that the physical conditions from which these jurors suffered constituted disabilities within the meaning of the ADA, the trial court did not err in denying plaintiff's Batson challenge to their exclusion from the jury.

Finally, we note that the statutory provision addressing the right of persons with disabilities to serve on juries, § 13-71-104(8)(b), C.R.S.2002, was not raised by the parties in the trial court or on appeal.

IL. Statutory Threshold

Plaintiff next argues that the trial court erred in allowing the jury to decide whether he met the statutory threshold for recovery of damages. We disagree.

Under the Colorado Auto Accident Reparations Act, § 10-4-701, et seq., C.R.S. 2002 (No-Fault Act), a plaintiff cannot recover damages in a tort action arising out of an automobile accident unless he or she proves that the accident caused at least one of the losses listed in § 10-4-714(1), C.R.S.2002. These include, as pertinent here, a [rJeasonable need for [medical] services ... having a reasonable value in exeess of $2,500. Section 10-4-714(1)(e), C.R.9.2002.

To show that this threshold requirement has been met, the plaintiff has the burden of establishing not only that he or she actually incurred medical expenses in excess of $2,500, but also that the expenses were for services to treat injuries caused by the accident and that a reasonable necessity for such services existed. See Pinell v. McCrary, 849 P.2d 848 (Colo.App.1992); Jorgensen v. Heinz, 847 P.2d 181 (Colo.App.1992).

Whether a plaintiff has met the statutory threshold is normally a question of fact, The issue may be taken from the jury only if the evidence regarding the extent and cause of the alleged injury is so clear that reasonable persons could not arrive at a contrary verdict. Pinell v. McCrary, supra.

Here, although plaintiff did not move for a directed verdict on the threshold issue, he objected to the verdict form and the threshold instruction that allowed the jury to decide the issue, arguing that there was no specific evidence that he did not have less than $2500 [sic] in medical expenses. The trial court found that there was a factual issue as to whether or not the treatment that was received was connected to the automobile accident and accordingly overriled the objection.

The trial court did not err in allowing the jury to decide the issue. Contrary to plaintiffs contention, defendant's expert did not admit that some $2,700 in medical expenses incurred between March 19, 1999, when the accident occurred, and June 12, 1999, when plaintiff had back surgery, were for the treatment of injuries sustained in the automobile accident. Plaintiff had suffered from back pain for several years before the accident, and there was conflicting testimony regarding the cause of his back pain." Although plaintiff's chiropractor and physical therapist testified that their treatment was reasonable, necessary, and causally related to the accident, defendant's expert opined that the automobile accident did not cause the symptoms that led plaintiff to have surgery in June 1999.

Based on the evidence presented, reasonable minds could have differed on whether the expenses plaintiff incurred for treatment of his back were for injuries caused by the accident. Therefore, the issue was properly submitted to the jury.

III. Subpoena Duces Tecum

We also disagree with plaintiff's contention that the trial court abused its discretion in quashing portions of his subpoena duces tecum that directed defendant's expert to provide copies of information identifying the percentage of his income derived from various enumerated sources other than his medical practice.

Litigants are entitled to bring out evidence on cross-examination that tends to show bias or prejudice on the part of a witness, including a witness who is testifying as an expert for the opposing party. See Bonser v. Shainholtz, 3 P.3d 422 (Colo.2000); Evans v. Colorado Permanente Medical Group, P.C., 902 P.2d 867 (Colo.App.1995), aff'd in part and rev'd in part, 926 P.2d 1218 (Colo.1996).

The right of parties to discover such evidence, while broad, is not unlimited. The need for discovery must be balanced against. the right of the party from whom discovery is sought to privacy and protection from harassment. Silva v. Basin Western, Inc., 47 P.3d 1184 (Colo.2002); see also C.R.C.P. 45(b) (upon timely motion, court may quash or modify subpoena for production of doeu-mentary evidence if it is unreasonable and oppressive); Leidholt v. District Court, 619 P.2d 768 (Colo.1980).

C.R.C.P. 26(a)(@2)(B)(I) requires that parties disclose certain information about their expert witnesses, including the compensation the witness is receiving and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years. While the rule does not preclude a party from requesting additional information about the opposing party's expert witnesses, it reflects a balane-ing of the need for discovery and the need for protection from unduly burdensome discovery requests.

Rulings on discovery issues, including requests for protective orders and the like, are committed to the discretion of the trial court. Bond v. District Court, 682 P.2d 33 (Colo.1984).

Plaintiff served the subpoena duces tecum on defense counsel on the Wednesday before trial. Defendant filed an objection, noting that much of the requested information had already been provided. He also moved to quash the two requests for copies of information identifying the portion of the witness's total income derived from various enumerated nonmedical sources. According to defendant, the witness did not maintain his files in a manner that would enable him readily to identify the percentage of his income derived from these sources. Defendant argued that it would be extremely burdensome for the witness to review all his files in the few remaining days before trial fo obtain the requested information and further argued that the subpoena sought unnecessary disclosure of the witness's personal and confidential financial information.

The trial court agreed that the requested information would be relevant to the issue of the witness's credibility, but concluded that the rules of civil procedure limiting the amount of information required to be disclosed by a party on behalf of its testifying expert reflected an appropriate balance in this case between the need for discovery and the need for protection from unduly burdensome discovery requests. Accordingly, the court granted the motion to quash.

The trial court did not abuse its discretion. Plaintiff had deposed defendant's expert and had received information through discovery that enabled him to conduct a lengthy cross-examination in which he brought out facts that could suggest a bias in favor of the defense. Further, because of the difficulty in accessing the requested information in the few days remaining before trial, it was within the discretion of the court to conclude that the burdensomeness of the request outweighed the relevance of the information sought. We do not agree with plaintiff that the trial court read C.R.C.P:; 26(a)(2)(B)(I) as necessarily imposing a ceiling on expert discovery. Rather, the court simply found the balance reflected in that rule to be an appropriate resolution of the issue in this case.

We also reject plaintiff's contention that defendant did not have standing to object to the subpoena. It was defendant's obligation to make the required C.R.C.P. 26 disclosures on behalf of his retained expert, and defendant would necessarily have to compensate the expert for time or expense he incurred in locating the additional information requested in the subpoena. Defendant thus had an interest in ensuring that he not be required to produce information beyond the seope of permissible discovery. See Falzon v. Home Insurance Co., 661 P.2d 696 (Colo.App.1982)(plaintiffs had standing even though subpoenas were not directed to them and they did not possess or control the subpoenaed documents).

IV. Costs

Finally, plaintiff argues that the trial court erred in including in its cost award some $100 for defense counsel's mileage and parking expenses. He argues that such sums are not recoverable under §§ 13-16-122 and 18-33-1083, C.R.S.2002, or under Welch v. George, 19 P.3d 675 (Colo.2000). However, plaintiff did not object to the cost award on this basis in the trial court and therefore may not raise the issue for the first time on appeal. See Estate of Stevenson v. Hollywood Bar & Cafe, Inc., supra.

The judgment is affirmed.

Judge DAVIDSON and Judge DAILEY concur.