author: Opinion by JUDGE FREYRE

text:
    John L. GARROU and Denice Garrou, Plaintiffs-Appellees, v. Lawrence A. SHOVELTON, Defendant-Appellant.
    Court of Appeals No. 18CA1772
    Colorado Court of Appeals, Division A.
    Announced January 24, 2019 As Modified February 7, 2019
    Wm. Andrew Wills II, P.C., Wm. Andrew Wills II, Colorado Springs, Colorado, for Plaintiffs-Appellees
    Hershey Decker Drake, Kari M. Hershey, Matthew W. George, Lone Tree, Colorado, for Defendant-Appellant
   Opinion by JUDGE FREYRE

¶ 1 This is a C.A.R. 4.2 interlocutory appeal of a district court order denying a motion to stay the proceedings. It arises from a medical malpractice action brought by plaintiffs, John L. Garrou and Denice Garrou, against defendant, Lawrence A. Shovelton, as well as Monarch Anesthesia, LLC (Monarch), and Salida Hospital District (hospital). Shovelton moved to stay the proceedings based on a South Carolina state court order commencing liquidation proceedings and granting an injunction and automatic stay of all proceedings against his malpractice carrier, Oceanus Insurance Company, and any of Oceanus' policyholders (South Carolina order). Oceanus is a risk retention insurance group, and Shovelton is one of its policyholders. We granted Shovelton's petition for interlocutory review because the appealed order involves controlling and unresolved questions of law, and our immediate review will promote a more orderly disposition of this litigation.

¶ 2 Resolution of the petition requires us to answer a novel question: Must a Colorado court recognize and give effect to a South Carolina court's liquidation order concerning a South Carolina risk retention insurance group and its policyholders when one of those policyholders is sued in Colorado? Our answer is "yes," for two reasons. First, both South Carolina and Colorado have adopted the Uniform Insurers Liquidation Act (UILA), §§ 10-3-501 to - 559, C.R.S. 2018; S.C. Code Ann. §§ 38-27-10 to -1000 (2018), which contains a reciprocity provision requiring states to recognize stays in insurance proceedings from other UILA states. Second, Oceanus is a risk retention group that was chartered in South Carolina and is governed by the Federal Liability Risk Retention Act of 1986 (LRRA), 15 U.S.C. §§ 3901 - 3906 (2018). The LRRA gives a risk retention group's charter state primary authority to regulate the group's operations under the UILA and to issue orders binding a risk retention group and its policyholders in other states where the group conducts business. Accordingly, we conclude that Colorado must recognize and give effect to South Carolina's order and, therefore, we reverse the district court's order denying Shovelton's motion for a stay. We remand the case with directions to stay the proceedings as to Shovelton, and for the district court to determine, in its discretion, whether the Garrous may proceed against Monarch and the hospital without Shovelton.

I. Relevant Facts and Procedural History

¶ 3 Mr. Garrou was admitted to a Colorado hospital for podiatric surgery, during which Shovelton, a nurse anesthetist, administered a popliteal nerve block. The Garrous allege that Shovelton negligently administered the nerve block and caused Mr. Garrou to suffer permanent injury to his right leg. Consequently, they filed this medical malpractice suit in January 2017 against Shovelton, Monarch, and the hospital asserting claims for negligence and loss of consortium.

¶ 4 Oceanus is Shovelton's malpractice insurer and is a South Carolina industrial insured captive corporation formed as a risk retention group. It is owned by its policyholder group members throughout the United States. In August 2017, the Director of the State of South Carolina Department of Insurance filed a petition to commence liquidation proceedings against Oceanus, alleging that Oceanus had failed to maintain the required minimum capital and surplus to cover its policyholders; that further business transactions would be hazardous to Oceanus' policyholders, creditors, and the public; and that Oceanus was insolvent under South Carolina law.

¶ 5 On September 21, 2017, a South Carolina court granted the Director's petition, appointed him as liquidator, and issued an order commencing liquidation proceedings. The order imposed an injunction and automatic stay of proceedings "applicable to all persons and proceedings." As relevant here, it prohibited (1) "[t]he institution or further prosecution of any actions or proceedings"; (2) "[t]he obtaining of preferences, judgments, attachments, garnishments, or liens against the insurer, its assets, or its policyholders"; (3) "[t]he levying of execution against its insurer, its assets or its policyholders"; and (4) "[a]ny other threatened or contemplated action that might lessen the value of the insurer's assets or prejudice the rights of policyholders, creditors, or shareholders, or the administration of any proceeding under Chapter 27 of Title 38 of the South Carolina code." The order further provided that "the rights and liabilities of the insurer and its creditors, policyholders, shareholders, members, and other persons interested in its estate become fixed as of the date of entry of the order of liquidation."

¶ 6 While the defendants' motions for summary judgment were pending, Shovelton received a letter from the liquidator dated September 29, 2017, advising him that "all claim matters that you have [with] Oceanus are now stayed." Separately, the Garrous filed a notice of the South Carolina order in October and requested a stay consistent with the order. Monarch and the hospital opposed the stay, arguing that the order was limited to the institution of new proceedings following issuance of the order and that the Colorado suit would not interfere with the out-of-state liquidation proceedings. On November 21, 2017, a magistrate denied defendants' summary judgment motions and the Garrous' request for a stay. Neither side appealed the order denying the stay.

¶ 7 On February 8, 2018, the South Carolina court issued an "Order of Clarification." That order provides as follows:

It has been brought to the attention of the Court that there is some confusion among the Bench and Bar in other jurisdictions as to whether the injunction and automatic stay set forth in the Order which is "applicable to all persons and proceedings" and which prohibits, among other things, "the institution of further prosecution of any actions or proceedings" includes prohibiting actions against the policyholders of Oceanus which would be the insured physicians which are also referred to as covered providers and additional named insureds of Oceanus Insurance Company.
So as to clarify my Order of September 21, 2017, this Order is to confirm that the automatic stay prohibiting "the institution of further prosecutions of any action or proceedings" includes prohibiting actions or proceedings against the policyholders, covered providers and additional named insureds of Oceanus Insurance Company.

¶ 8 On May 3, 2018, Shovelton filed a motion to stay all proceedings. He argued that Colorado must give full faith and credit to the South Carolina order because both states have adopted a version of the UILA and are bound by reciprocity under it. The hospital joined the motion a few days later, and the Garrous filed a motion opposing the stay. The Garrous argued that (1) the court had already ruled on this issue in its November 21, 2017, order; (2) no appeal had been taken from the magistrate's order; (3) the Colorado proceedings did not interfere with the Oceanus liquidation; and (4) any delay would be unjust. The district court denied Shovelton's motion on July 23, 2018, finding that a stay is not required because (1) if the South Carolina order applies to any actions or proceedings against any policyholder, it would be "dangerously broad"; (2) any judgment in Colorado would not affect the assets of Oceanus, but instead would only affect Shovelton's ability to pay the costs of his defense and to receive assistance in paying a claim; and (3) because South Carolina has no jurisdiction over the Garrous, it cannot bind them. Shovelton then moved for C.A.R. 4.2 certification of the court's order denying his motion for stay, and both the district court and this division granted his petition.

II. Colorado Must Recognize South Carolina's Liquidation Order

¶ 9 Shovelton contends that the district court erroneously denied his motion for stay because Colorado and South Carolina are reciprocal states under the UILA, and, thus, Colorado must give full faith and credit to any injunction order in a liquidation proceeding. We agree, but for slightly different reasons. Because Colorado and South Carolina are reciprocal states under the UILA, the statutory language requires Colorado to recognize South Carolina's order. Moreover, the LRRA, which governs risk retention groups, further requires Colorado to honor the South Carolina order. Therefore, we need not decide the constitutional issue. See Denver Publ'g Co. v. Bd. of Cty. Comm'rs , 121 P.3d 190, 194 (Colo. 2005) ("[I]t is our obligation and crucial to our exercise of judicial authority that we do not resolve constitutional questions or make determinations regarding the extent of constitutional rights unless such a determination is essential and the necessity for such a decision is clear and inescapable.").

A. Standard of Review and Applicable Law

¶ 10 Although a district court's decision to grant or deny an injunction generally lies within the sound discretion of the court, where, as here, the issue concerns only legal questions and the facts are not disputed, we review the decision de novo. Evans v. Romer , 854 P.2d 1270, 1289 (Colo. 1993). Similarly, we interpret statutes de novo. Miller v. Hancock , 2017 COA 141, ¶ 24, 410 P.3d 819. In doing so, we give words and phrases their plain and ordinary meanings. Id. "If a statute is clear and unambiguous on its face, then we need not look beyond the plain language, and 'we must apply the statute as written.' " Vigil v. Franklin , 103 P.3d 322, 327 (Colo. 2004) (citations omitted).

1. The Uniform Insurers Liquidation Act

¶ 11 The UILA was drafted by the National Conference of Commissioners on Uniform State Laws and the American Bar Association to eliminate difficulties that had arisen during the liquidation, rehabilitation, and reorganization of insurance companies that operated in multiple states. See Herstam v. Bd. of Dirs. , 895 P.2d 1131, 1134-35 (Colo. App. 1995) (citing UILA, 13 U.L.A. 322-23 prefatory note (1986) ). The UILA provides "reciprocal provisions that could be adopted by each state" to "provide a uniform, orderly, and equitable method of making and processing claims against financially troubled insurers and to provide for fair procedures for rehabilitating the business of such insurers and, if necessary, for distributing their assets." Id. at 1135.

¶ 12 Colorado adopted the UILA in 1955 and repealed and reenacted it in 1992, adding, relocating, and eliminating certain sections as the Insurers' Rehabilitation and Liquidation Act (Colorado IRLA). See id. The Colorado IRLA defines a reciprocal state as

any state other than this state in which, in substance and effect, sections 10-3-517(1), 10-3-551, 10-3-552, 10-3-554, 10-3-555, and 10-3-556 are in force, and in which provisions are in force requiring that the commissioner or equivalent official be the receiver of a delinquent insurer, and in which some provision exists for the avoidance of fraudulent conveyances and preferential transfers.

§ 10-3-502(15), C.R.S. 2018.

¶ 13 South Carolina has adopted its own version of the UILA, the South Carolina Insurers Rehabilitation and Liquidation Act (SCIRLA). S.C. Code Ann. §§ 38-27-10 to -1000 (2018). Both the Colorado IRLA and the SCIRLA provide that on motion from a receiver, a court may grant restraining orders, preliminary and permanent injunctions, and other orders as necessary. See § 10-3-505, C.R.S. 2018; S.C. Code Ann. § 38-27-70 (2018). As well, the SCIRLA defines reciprocity the same as the Colorado IRLA, except that it refers to an insurance "director" rather than an insurance "commissioner." S.C. Code. Ann. § 38-27-50(17) (2018).

2. Federal Liability Risk Retention Act of 1986

¶ 14 Unlike a traditional insurance company, a risk retention group is owned and operated by its members-the insureds-and is governed by the LRRA, 15 U.S.C. §§ 3901 - 3906 (2018). The LRRA defines a "risk retention group" as "any corporation or other limited liability association ... which ... is chartered or licensed as a liability insurance company under the laws of a State and authorized to engage in the business of insurance under the laws of such State" and "has as its owners only persons who comprise the membership of the risk retention group and who are provided insurance by such group." 15 U.S.C. § 3901(a)(4)(C)(i), (a)(4)(E)(i). Risk retention groups are formed "for the purpose of self-insuring" and are made up of "persons or businesses with similar or related liability exposure." Wadsworth v. Allied Prof'ls Ins. Co. , 748 F.3d 100, 102-03 (2d Cir. 2014). Congress enacted the LRRA "to decrease insurance rates and increase the availability of coverage by promoting greater competition within the insurance industry." Preferred Physicians Mut. Risk Retention Grp. v. Pataki , 85 F.3d 913, 914 (2d Cir. 1996).

¶ 15 Risk retention groups are "subject to a tripartite scheme of concurrent federal and state regulation." Wadsworth , 748 F.3d at 103. First, the LRRA preempts state laws that "make unlawful, or regulate, directly or indirectly, the operation of a risk retention group." 15 U.S.C. § 3902(a)(1) (2018). Second, it exempts from preemption the domiciliary or charter state, which it vests with plenary authority to "regulate the formation and operation" of risk retention groups. 15 U.S.C. § 3902(a)(1). "Federal preemption, therefore, functions not in aid of a comprehensive federal regulatory scheme, but rather to allow a risk retention group to be regulated by the state in which it is chartered , and to preempt most ordinary forms of regulation by the other states in which it operates." Wadsworth , 748 F.3d at 103 (emphasis added). Indeed, consistent with the LRRA, the Colorado IRLA is intended to "protect the interests of insureds," and to lessen "the problems of interstate rehabilitation and liquidation of insurers by facilitating cooperation between states in the liquidation process and by extending the scope of personal jurisdiction over debtors of insurers outside [Colorado]." § 10-3-501(3), C.R.S. 2018.

¶ 16 Third, the LRRA vests some authority over risk retention groups in nondomiciliary states. For instance, the LRRA permits nondomiciliary states to (1) require a risk retention group's registration with the state commissioner for service of process purposes, 15 U.S.C. § 3902(a)(1)(D) ; (2) require a risk retention group to submit to an examination by the state commissioner to determine the group's financial condition, 15 U.S.C. § 3902(a)(1)(E) ; and (3) investigate and initiate liquidation proceedings against a risk retention group that does business in the nondomiciliary state when the charter state declines to do so, 15 U.S.C. § 3902(a)(1)(E)(i)-(ii), (F)(i). But overall, the LRRA sharply limits a nondomiciliary state's secondary regulatory authority over risk retention groups, as compared to the "near plenary authority it reserves to the charter[ ] state." Wadsworth , 748 F.3d at 103-04.

B. Application

¶ 17 We begin by rejecting the Garrous' contention that the reciprocity provision of the Colorado IRLA does not apply to a risk retention group-only to traditional insurers. While we agree that Oceanus is a risk retention group, the parties do not dispute that Oceanus provides liability insurance to its policyholders and, thus, is in the insurance business. And persons subject to the Colorado IRLA include "[a]ll insurers who are doing, or have done, an insurance business in this state," "[a]ll insurers who purport to do an insurance business in this state," and "[a]ll insurers who have insureds resident in this state." § 10-3-503(1)(a), (b), (c), C.R.S. 2018. Therefore, we discern no meaningful distinction between a risk retention group and a traditional insurer under the Colorado IRLA.

¶ 18 We next consider and reject the Garrous' contention that Colorado and South Carolina are not "reciprocal states" that require each to recognize and give effect to the other's orders. As noted above, both Colorado and South Carolina have adopted versions of the UILA with substantively similar provisions that authorize the insurance commissioner (or in South Carolina the insurance director) to be the receiver of a delinquent insurer, and to seek restraining orders, preliminary and permanent injunctions, and other orders as necessary. We conclude from the plain language of both states' UILA statutes that Colorado and South Carolina are indeed reciprocal states. See Herstam , 895 P.2d at 1136 (concluding that because the Colorado and Arizona statutes are "substantially similar" they meet the definition of reciprocal states). And reciprocal states under the UILA must recognize and give effect to a domiciliary state's order. Id. ; see § 10-3-505 (allowing a receiver to apply for an injunction and stay for proceedings under the UILA); S.C. Code Ann. § 38-27-70 (same) ; see also § 10-3-556, C.R.S. 2018 (stating that during the pendency of a liquidation proceeding "in this or any other state," no action "shall be commenced or maintained in this state against the delinquent insurer or its assets"); S.C. Code Ann. § 38-27-980 (2018) (same).

¶ 19 Next, we are not persuaded by the Garrous' contention that the LRRA somehow limits South Carolina's authority to regulate and enjoin Oceanus. We instead conclude the opposite is true-that the LRRA strengthens South Carolina's authority over Oceanus and its policyholders. Recall, Congress enacted the LRRA to give a charter state more control over risk retention groups and to limit noncharter states from infringing on that authority. 15 U.S.C. § 3902(a)(1) (exempting risk retention groups from state law that would "make unlawful, or regulate, directly or indirectly, the operation" but excepting "the jurisdiction in which it is chartered"); Wadsworth , 748 F.3d at 106. Thus, contrary to the Garrous' argument, the LRRA limits Colorado's authority, as a noncharter state, to interfere with South Carolina's control over Oceanus. See Wadsworth , 748 F.3d at 106 (concluding that applying New York law that interferes with the operation or regulation of an Arizona risk retention group is not authorized under the LRRA); see also Fla. Dep't of Ins. v. Nat'l Amusement Purchasing Grp., Inc. , 905 F.2d 361, 363 (11th Cir. 1990) ("Chartered in the group's state of domicile, the risk retention group is regulated primarily by the domiciliary state. The authority of non-domiciliary states to license and regulate risk retention groups is largely preempted.").

¶ 20 Indeed, if a noncharter state like Colorado could ignore the South Carolina injunction and stay of litigation involving a South Carolina risk retention group's policyholder, it would "make it difficult for risk retention groups to form or to operate on a multi-state basis," which is precisely what Congress sought to avoid when it enacted the LRRA. Wadsworth , 748 F.3d at 107 (citing Preferred Physicians , 85 F.3d at 915-16 ). As the charter state, South Carolina has the legal authority to regulate the liquidation proceeding, and allowing suits against policyholders in noncharter states, contrary to the South Carolina order, impairs that regulation. In our view, the statutory scheme requires that Colorado respect the power of South Carolina to regulate and control Oceanus' liquidation.

¶ 21 Additionally, the LRRA specifically incorporates the insurance laws of the risk retention group's charter state. First, it defines a risk retention group as an insurance company that is chartered or licensed "under the laws of a State." 15 U.S.C. § 3901(a)(4). Next, it defines "insurance" as "primary insurance, excess insurance, reinsurance, surplus lines insurance, and any other arrangement for shifting and distributing risk which is determined to be insurance under applicable State or Federal law." 15 U.S.C. § 3901(a)(1) (emphasis added). Finally, it also requires a risk retention group to "submit ... to the insurance commissioner of the State in which it is chartered." 15 U.S.C. § 3902(d)(1). Therefore, the LRRA strengthens rather than diminishes the SCIRLA's and South Carolina's authority over Oceanus and its policyholders.

¶ 22 We are not persuaded that Colorado's or South Carolina's failure to specifically define a risk retention group in their respective UILAs somehow creates a conflict with the LRRA. Notably, neither state's statutes exempt risk retention groups, and the parties agree that a risk retention group is an insurer. Because the LRRA specifically incorporates a charter state's "insurance laws," we discern no conflict. Instead, we view the LRRA and the UILA as working in harmony-where the provisions conflict, the LRRA controls, but where the LRRA specifically incorporates insurance laws of the charter state that are compatible with its provisions or purposes, they are not mutually exclusive. Thus, the LRRA simply strengthens the requirement that Colorado recognize and give effect to South Carolina's order because South Carolina retains exclusive control over Oceanus under the LRRA through the SCIRLA.

¶ 23 Next, while the Garrous are correct that the South Carolina court does not have jurisdiction over them, no one disputes that South Carolina has jurisdiction over Shovelton, who is a policyholder in a South Carolina-chartered risk retention group and a party to this action. The SCIRLA allows South Carolina courts to issue injunctions "necessary and proper to prevent ... the obtaining of preferences, judgments, attachments, garnishments, or liens against the insurer, its assets, or its policyholders." S.C. Code Ann. § 38-27-70(A)(1)(g). And the LRRA requires a risk retention group to "comply with an injunction issued by a court of competent jurisdiction, upon a petition by the State insurance commissioner alleging that the group is in hazardous financial condition or is financially impaired." 15 U.S.C. § 3902(a)(1)(H). The Garrous have cited no authority, nor have we found any, that precludes a charter state from binding its risk retention group's policyholders. In fact, binding policyholders is logically necessary to prevent numerous judgments against a risk retention group, and nothing in the LRRA can "affect the authority of any Federal or State court to enjoin ... [the] operation of, a risk retention group that is in hazardous financial condition or is financially impaired." 15 U.S.C. § 3902(e)(2). Moreover, enjoining suits involving policyholders on a nationwide basis is precisely what the South Carolina court intended, as it made clear in its clarification order.

¶ 24 Finally, we are not persuaded that Smigielski v. Brookwood School, Inc. , No. 02-209, 2003 WL 1906786 (Mass. Sup. Ct. Apr. 16, 2003), or Mahan v. Gunther , 278 Ill.App.3d 1108, 215 Ill.Dec. 625, 663 N.E.2d 1139 (1996), require a different result. Neither case involved a risk retention group like Oceanus, so neither case discussed the applicability of the LRRA. Further, neither the Massachusetts nor the Illinois case involved reciprocity under the UILA.

¶ 25 In sum, we conclude that South Carolina has jurisdiction over Oceanus and Oceanus' policyholders, including Shovelton. Herstam , 895 P.2d at 1136. Because South Carolina and Colorado are reciprocal states under their respective UILAs, and because South Carolina is the charter state under the LRRA, we conclude that Colorado must recognize and give effect to the South Carolina order and that the district court erred in denying Shovelton's motion for stay. However, because nothing in the record shows that Monarch or the hospital is insured by Oceanus, the proceedings as to them are not directly affected by the stay as to Shovelton. On remand, the district court must enter a stay as to Shovelton. It must also exercise its discretion to determine whether Shovelton is an indispensable party to the litigation and whether staying the entire case to avoid piecemeal litigation may be required. See President's Co. v. Whistle , 812 P.2d 1194, 1196 (Colo. App. 1991) (explaining that the trial court has discretion to determine whether to stay the entire proceeding or only part of the proceeding); see also Dawn v. Mecom , 520 F.Supp. 1194, 1197 (D. Colo. 1981) (noting the desirability of avoiding piecemeal litigation when one action seeks resolution of the entire controversy and the other seeks limited relief).

¶ 26 In reaching our conclusion, we are mindful of the Garrous' claim that an indefinite stay would be unjust and note that once the stay is in place, they may seek relief from the stay in South Carolina. Indeed, the record shows that the South Carolina court has previously granted relief from the stay to parties in a North Carolina medical malpractice proceeding.

III. Conclusion

¶ 27 The order is reversed, and the case is remanded for the district court to stay proceedings as to Shovelton, consistent with the South Carolina order, and to enter any further orders that it deems necessary and appropriate as to the remaining parties.

CHIEF JUDGE BERNARD and JUDGE WELLING concur.

      Neither Monarch nor the hospital joined Shovelton's C.A.R. 4.2 petition.

      While the legal issue presented in the Rule 4.2 petition is unrelated to the merits of the malpractice action, the division agrees with Shovelton that proceeding to trial with the automatic stay in place could result in a judgment that is void as a matter of law, thereby requiring the parties to expend considerable additional resources on a second trial. Cf. McGuire v. Champion Fence & Constr., Inc. , 104 P.3d 327, 329 (Colo. App. 2004) (finding that actions against debtors in violation of a bankruptcy stay are void). Therefore, granting the petition will promote a more orderly disposition of the litigation. Triple Crown at Observatory Village Ass'n v. Village Homes of Colo., Inc. , 2013 COA 144, ¶¶ 14-15, 389 P.3d 888.

      Popliteal is "of or relating to the back part of the leg behind the knee joint." Merriam-Webster Dictionary, https://perma.cc/7XTDDK64.

      Shovelton cites two New York cases holding that the South Carolina order should be honored under the doctrine of comity. Rojas v. Travers Concannon , No. 805249/2016, 2018 WL 1508861 (N.Y. Sup. Ct. N.Y. Cty. Mar. 27, 2018) ; Leon v. Waldman , No. 805271/2014, 2018 WL 1448077 (N.Y. Sup. Ct. N.Y. Cty. Mar. 23, 2018). The Garrous cite to a different New York case holding the opposite under the doctrine of comity. Hala v. Orange Reg'l Med. Ctr. , No. 3221/2014, 60 Misc.3d 274, 76 N.Y.S.3d 369 (N.Y. Sup. Ct. Orange Cty. Apr. 23, 2018). Although we agree with the conclusions in Rojas and Leon , we are not bound by their decisions. Wal-Mart Stores, Inc. v. United Food & Commercial Workers Int'l Union , 2016 COA 72, ¶ 17, 382 P.3d 1249. Moreover, because we decide this case on statutory grounds, we need not address the doctrine of comity.

      Compare § 10-3-517(1), C.R.S. 2018 (liquidation orders), and § 10-3-551, C.R.S. 2018 (domiciliary liquidators in other states), and § 10-3-552, C.R.S. 2018 (ancillary formal proceedings), and § 10-3-554, C.R.S. 2018 (claims of nonresidents against insurers domiciled in the state), and § 10-3-555, C.R.S. 2018 (claims of residents against insurers domiciled in reciprocal states), and § 10-3-556, C.R.S. 2018 (attachment, garnishment, and levy of execution), with S.C. Code Ann. § 38-27-370 (2018) (liquidation orders), and S.C. Code Ann. § 38-27-930 (2018) (domiciliary liquidators in other states), and S.C. Code Ann. § 38-27-940 (2018) (ancillary formal proceedings), and S.C. Code Ann. § 38-27-960 (2018) (claims of nonresidents against insurers domiciled in the state), and S.C. Code Ann. § 38-27-970 (2018) (claims of residents against insurers domiciled in reciprocal states), and S.C. Code Ann. § 38-27-980 (2018) (attachment, garnishment, and levy of execution).

      For the same reasons, we find Gladd v. Landmark Logistics, Inc. , No. CIV-16-894-D, 2016 WL 6407436 (W.D. Okla. Oct. 28, 2016), the case on which the district court relied, inapposite.

      South Carolina's Court of Common Pleas for the Fifth Judicial Circuit ultimately vacated the order lifting the stay after the parties settled with the liquidator.


source: Caselaw Access Project

author: Opinion by JUDGE DUNN

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Petitioner-Appellee,
    IN the INTEREST OF D.C., Juvenile-Appellant.
    Court of Appeals No. 16CA0236
    Colorado Court of Appeals, Division VII.
    Announced February 21, 2019
    Philip J. Weiser, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado, for Petitioner-Appellee
    Megan A. Ring, Colorado State Public Defender, Ryann S. Hardman, Deputy State Public Defender, Denver, Colorado, for Juvenile-Appellant
   Opinion by JUDGE DUNN

¶1 D.C. and E.L. were committed to the Division of Youth Corrections (DYC). During their DYC science class, D.C. exposed one of his testicles to E.L. E.L. reported the incident, and the prosecution filed a delinquency petition, alleging that D.C. committed an act that, if committed by an adult, would constitute public indecency. After a bench trial, the juvenile court adjudicated D.C. delinquent.

¶2 D.C. appeals, contending that insufficient evidence supported the adjudication. We disagree and therefore affirm.

I. Sufficiency of the Evidence

¶3 D.C. argues the prosecution failed to establish that the DYC classroom, where D.C. exposed his testicle, was a "public place" under the public indecency statute, § 18-7-301(1), C.R.S. 2018. We are persuaded the evidence was sufficient to support the adjudication. We, however, come to this conclusion not because the classroom was a public place (an issue we don't reach) but because D.C. exposed himself where members of the public were reasonably likely to see it.

A. Standard of Review

¶4 We review challenges to the sufficiency of evidence de novo. People in Interest of G.B. , 2018 COA 77, ¶ 13, 433 P.3d 138. In doing so, we must determine whether the evidence, when viewed as a whole and in the light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a rational fact finder that the juvenile committed the act beyond a reasonable doubt. Id. We give the prosecution the benefit of every reasonable inference that might fairly be drawn from the evidence. People v. Perez , 2016 CO 12, ¶ 32, 367 P.3d 695.

¶5 We likewise interpret the public indecency statute de novo. See People v. Halbert , 2013 COA 95, ¶ 11, 411 P.3d 47. We give the statutory words their plain and ordinary meanings, and, if the statute is unambiguous, we apply it as written. Id.

B. Public Indecency

¶6 As relevant here, a person commits public indecency by knowingly exposing his genitals to the view of another under circumstances that are likely to cause affront or alarm "in a public place or [in a place] where the conduct may reasonably be expected to be viewed by members of the public." § 18-7-301(1)(e). The statute therefore identifies two different ways to commit the crime of public indecency - exposing oneself "in a public place" or exposing oneself in a place where members of the public "may reasonably be expected" to view the exposure. See id. ; see also Willhite v. Rodriguez-Cera , 2012 CO 29, ¶ 18, 274 P.3d 1233 ("[T]he use of the disjunctive 'or' reflects a choice of equally acceptable alternatives."); cf. Friend v. People , 2018 CO 90, ¶¶ 18-19, 429 P.3d 1191 (Where a criminal statute sets forth different ways to commit a crime, separated by the disjunctive "or," it "prescribes a single crime" that "can be committed in alternate ways.").

¶7 Responding to D.C.'s motion for judgment of acquittal at trial, the prosecution argued that it had presented sufficient evidence establishing that the DYC classroom was a "public place" or that the exposure occurred in a place "where the conduct might reasonably ha[ve] been expected to be viewed by members of the public." The juvenile court recognized that DYC residents, teachers, and staff are "members of the public," but ultimately denied the motion because it concluded that the DYC classroom was a "public place."

¶8 The parties disagree on whether the DYC classroom is a "public place" under the public indecency statute. But we need not wade into this disagreement because sufficient evidence showed that D.C. exposed his genitals in a place "where the conduct may reasonably be expected to be viewed by members of the public." § 18-7-301(1) ; see People v. Steerman , 735 P.2d 876, 879 (Colo. 1987) (reinstating a jury verdict vacated by the district court because sufficient evidence supported a statutory alternative for committing the charged crime); People v. Prendergast , 87 P.3d 175, 186 (Colo. App. 2003) (rejecting the defendant's sufficiency of the evidence challenge when the jury instruction phrased an element of the crime in the disjunctive and sufficient evidence supported the alternative manner to commit the crime); cf. People v. Dunaway , 88 P.3d 619, 629 n.9 (Colo. 2004) (when elements of a crime are listed in the "disjunctive," "proof of one" is sufficient); People v. Viduya , 703 P.2d 1281, 1292 (Colo. 1985) ("[When t]he statute describes two ways in which this offense can be committed[,] ... [i]t is then proper to instruct the jury in the disjunctive, requiring conviction if any of the statutory alternatives is established by the evidence.").

¶9 In that regard, E.L. testified that nine or ten other students and a teacher were in the DYC classroom when D.C. exposed himself. He also said that DYC staff were outside the classroom. Another student confirmed that the teacher and other students were present at the time of the incident. And a correctional officer testified that DYC staff go in and out of the classrooms and that they "use the classrooms for lots of different things." The officer also explained that the juvenile residents (under staff supervision) may go in and out of the classrooms during school hours and that at times parents can "come in and visit" the school for such reasons as parent-teacher conferences. Given this testimony, the juvenile court recognized that a "substantial ... number of members of the community" are present in the school.

¶10 Viewing the evidence in the light most favorable to the prosecution - as we must - a reasonable fact finder could conclude that D.C. knowingly exposed his genitals to E.L. in a place "where the conduct may reasonably be expected to be viewed by members of the public." § 18-7-301(1). The evidence therefore sufficiently supports the adjudication.

¶11 Attempting to avoid that result, D.C. leans heavily on In re May , 357 N.C. 423, 584 S.E.2d 271 (2003), arguing that the DYC residents, teachers, and staff are not "members of the public" while in the classroom because, he contends, they are present there "only by virtue of having been assigned to live there or ... their employment." We see a few problems with this argument.

¶12 First, May , is distinguishable. It considered whether sufficient evidence supported the elements for the common law crime of "affray" (recognized in North Carolina), when a juvenile was involved in a physical fight on the grounds of a children's group home. Id. at 272-73. A necessary element of this crime is that the fight occurred "in a public place." Id. at 274. Concluding the prosecution didn't present evidence establishing this element, the court reversed the juvenile's adjudication. In doing so, it recognized that only residents and staff of the children's home ("associates of the combatants") witnessed the fight and such witnesses with "strong ties to the facility" did not "transform the facility ... into a public place." Id. at 277. May did not hold that residents and staff of a juvenile facility can't be members of the public. See id. at 276-77. Thus, May adds little to our analysis.

¶13 Second, the public indecency statute does not require that the "members of the public" actually see the exposure, just that the exposure occur in a place where members of the public "may reasonably be expected" to see it. § 18-7-301(1). D.C.'s argument, therefore, doesn't account for the testimony that family members can (and do) visit the DYC school. These nonstaff members of the public "may reasonably be expected" to view conduct in the school, even if they might not have been physically present when D.C. exposed himself. This undisputed evidence alone supports the adjudication.

¶14 Third, we see no reason why DYC teachers, staff, and juvenile residents are not "members of the public." After all, a "member" means "one of the individuals composing a society, community, association, or other group." Webster's Third New International Dictionary 1408 (2002). The legislature didn't exclude teachers, staff, or juvenile DYC residents from being "members of the public" in the public indecency statute. And we are unaware of any authority stripping DYC teachers and staff of their public membership simply due to their place of employment. Cf. Doe v. Colo. Dep't of Pub. Health & Env't , 2018 COA 106, ¶ 38, --- P.3d ---- (" '[M]ember' plainly means something different than 'employee.' ") (cert. granted 2019 WL 188219 (Jan. 14, 2019) ). In the same way, juvenile DYC residents' inability to freely leave the facility doesn't mean they lose their status as "members of the public" entitled to protection from public indecency.

¶15 In fact, People v. Hoskay , 87 P.3d 194 (Colo. App. 2003), reached a similar conclusion, albeit in a slightly different context. There, the defendant was convicted of public indecency for having sexual intercourse in the dormitory room of a detoxification facility. Id. at 198. The division rejected the defendant's sufficiency argument, concluding that "[t]he evidence established that the dormitory room of the detoxification facility was open to [those] admitted to the facility, as well as to the staff." Id. at 199. It thus held that sufficient evidence supported the jury's finding that the room was "a place where sexual conduct may reasonably have been expected to be viewed by members of the public." Id.

¶16 And our conclusion is consistent with courts in other jurisdictions, which have found that staff and residents of correctional facilities may be members of the public when considering similar crimes. See State v. Narcisse , 833 So.2d 1186, 1192 (La. Ct. App. 2002) (upholding the defendant's conviction for obscenity in public view when he masturbated in front of jail infirmary staff); People v. Williams , 237 Mich.App. 413, 603 N.W.2d 300, 302 (1999) (concluding that oral sex in a jail interview room was committed in a place where members of the public could have been exposed, including "jail personnel, attorneys, and visitors"), vacated in part , 462 Mich. 861, 613 N.W.2d 721 (2000) ; cf. State v. Black , 260 Ark. 864, 545 S.W.2d 617, 619 (1977) (concluding that oral sex in the city jail's "drunk tank" occurred in a public place where jail staff, other inmates, and people on public tours could view the act); People v. Giacinti , 44 Ill.App.3d 699, 3 Ill.Dec. 391, 358 N.E.2d 934, 937 (1976) (affirming public indecency conviction committed in a prison cell that could have been viewed by prison staff, prisoners, and visiting ministers).

II. Conclusion

¶17 For these reasons, we conclude that sufficient evidence supports D.C.'s public indecency adjudication and therefore affirm it.

Márquez and Casebolt*, JJ., concur

      Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5 (3), and § 24-51-1105, C.R.S. 2018.

      D.C. didn't challenge the sufficiency of evidence as to any other element of the public indecency statute at trial, nor does he on appeal.


text:
    Daniel Earl NEPPL, Plaintiff-Appellant, v. COLORADO DEPARTMENT OF REVENUE, Defendant-Appellee.
    Court of Appeals No. 18CA1230
    Colorado Court of Appeals, Division III.
    Announced February 21, 2019
    Fife Luneau, P.C., Charles L. Fife, Daniel Luneau, Denver, Colorado, for Plaintiff-Appellant
    Philip J. Weiser, Attorney General, Laurie Rottersman, Senior Assistant Attorney General, Denver, Colorado, for Defendant-Appellee
   Opinion by JUDGE FREYRE

¶1 Plaintiff, Daniel Earl Neppl, appeals the district court's judgment affirming the revocation of his driver's license by the Colorado Department of Revenue (Department). The Department revoked Neppl's license based on a test result showing that he had a legally excessive blood alcohol content (BAC).

¶2 Neppl contends that the test result was inadmissible because the paramedic who drew his blood did not have a supervisor physically present. He asks us to interpret the words "under the supervision" in the express consent statute, section 42-4-1301.1(6), C.R.S. 2018, to require on-the-spot supervision - an issue of first impression. We reject his contention for two reasons. First, we hold that the plain language does not require a doctor's supervision of a paramedic. Second, even assuming it did, we conclude that, consistent with our supreme court's interpretation of the same language in a prior version of Colorado's driving under the influence/implied consent statute, "under the supervision" is not synonymous with "on-the-spot" supervision. For these reasons, we affirm the judgment.

I. Background

¶3 The hearing officer made the following record-supported findings.

¶4 A police officer stopped Neppl's vehicle after Neppl twice failed to use his turn signal. On contacting Neppl, the officer noticed several indicia of alcohol intoxication, and Neppl admitted to drinking four beers. After Neppl failed to satisfactorily perform voluntary roadside maneuvers, the officer advised him of his options under the express consent law. Neppl chose a blood test. That test showed that he had a BAC of .188 grams of alcohol per 100 milliliters of blood.

¶5 After receiving the test results, the officer issued Neppl a notice of revocation. See § 42-2-126(3)(a), C.R.S. 2018 (requiring the Department to revoke a person's license for a BAC in excess of 0.08). Neppl requested a hearing. As pertinent here, Neppl argued at the hearing that the paramedic who drew his blood was not authorized to do so because the doctor who supervised the paramedic was not present at the time of the blood draw. The hearing officer rejected Neppl's argument and concluded that the person performing the blood draw was "either a paramedic or emergency medical technician" and was therefore "qualified" to withdraw the blood without any direct supervision by a doctor or nurse. Consequently, the hearing officer sustained the revocation.

¶6 Neppl then commenced this review action in the district court. He again argued, among other things, that the paramedic was not authorized to perform the blood draw without direct doctor supervision. The district court disagreed. It concluded that under the applicable statute and regulations, paramedics need not be supervised to perform blood draws and that, even if supervision was necessary, nothing required direct supervision at the time of the blood draw. The court also concluded that any technical noncompliance associated with the blood draw would go to its weight and not its admissibility. Accordingly, the court affirmed the Department's revocation of Neppl's license.

II. Discussion

¶7 Neppl's contentions provide no basis for reversing the district court's judgment or the underlying revocation order.

A. Standard of Review

¶8 Section 42-2-126(9)(b) governs judicial review of the Department's driver's license revocation orders. Under that statute, a reviewing court may reverse the Department's determination if it (1) exceeded its constitutional or statutory authority; (2) erroneously interpreted the law; (3) acted in an arbitrary and capricious manner; or (4) made a determination that is unsupported by the evidence in the record. See Hanson v. Colo. Dep't of Revenue , 2012 COA 143, ¶ 13, 411 P.3d 1, aff'd , 2014 CO 55, 328 P.3d 122.

¶9 A reviewing court may not disturb a hearing officer's factual findings unless they are "clearly erroneous on the whole record." § 24-4-106(7)(b)(VII), C.R.S. 2018 (made applicable through section 42-2-126(11) ). The credibility of witnesses, the weight to be afforded the evidence, and the resolution of conflicting evidence are factual matters solely within the hearing officer's province as the trier of fact. Long v. Colo. Dep't of Revenue , 2012 COA 130, ¶ 6, 296 P.3d 329. However, courts review de novo agency determinations regarding questions of law. Id. at ¶ 7.

¶10 We occupy the same position as the district court when reviewing the Department's actions. See Haney v. Colo. Dep't of Revenue , 2015 COA 125, ¶ 14, 361 P.3d 1093.

B. The Paramedic's Authority to Draw Blood

¶11 Neppl's argument that the statute requires on-the-spot supervision requires us to interpret section 42-4-1301.1(6). "Our objective when interpreting a statute is to effectuate the intent and purpose of the General Assembly." Zelenoy v. Colo. Dep't of Revenue , 192 P.3d 538, 541 (Colo. App. 2008). To achieve this objective, we begin with the statute's express language, and if that language is clear and unambiguous, we must apply its plain and ordinary meaning. See id.

¶12 Section 42-4-1301.1(6) is part of the express consent statute. It provides, in relevant part, as follows:

No person except a physician, a registered nurse, a paramedic, as certified in part 2 of article 3.5 of title 25, C.R.S., an emergency medical service provider, as defined in part 1 of article 3.5 of title 25, C.R.S., or a person whose normal duties include withdrawing blood samples under the supervision of a physician or registered nurse shall withdraw blood to determine the alcoholic or drug content of the blood for purposes of this section.

§ 42-4-1301.1(6)(a).

¶13 Neppl relies on a blood draw form that the paramedic completed. In that form, the paramedic initialed the following statement: "I draw blood samples regularly in the course of my duties for Mountain View Fire Rescue. I am supervised by Mountain View Fire Rescue Medical Director, Adam J. Rush, MD." He argues this statement means that the paramedic had to be supervised by Dr. Rush while conducting any blood draw and that, because Dr. Rush was not present and supervising the blood draw here, section 42-4-1301.1(6)(a) was violated. We disagree with this argument for two reasons.

¶14 First, under section 42-4-1301.1(6)(a) 's plain language, a paramedic need not be supervised by a physician or nurse to withdraw blood. The statute describes five categories of individuals - (1) physicians; (2) registered nurses; (3) paramedics; (4) emergency medical service providers; and (5) other persons "whose normal duties include withdrawing blood samples." Id. By the statute's plain terms, only the last category of individuals must be under the supervision of a physician or registered nurse. As the hearing officer noted, construing the statute to require paramedics to be supervised would also require physicians and nurses to be supervised, an absurd or unreasonable result. See People v. Ramirez , 2018 COA 129, ¶ 52, --- P.3d ---- (courts will not follow a statutory construction that leads to an unreasonable or absurd result).

¶15 Neppl also argues that nothing in the record shows that the paramedic was "certified" under Title 25. However, this factual issue is not properly before us because Neppl failed to raise it in the administrative proceedings. See Tate v. Colo. Dep't of Revenue , 155 P.3d 643, 647 (Colo. App. 2007) ; see also Hancock v. State , 758 P.2d 1372, 1376 (Colo. 1988) (review of agency action is limited to the record before the agency); Poe v. Dep't of Revenue , 859 P.2d 906, 909 (Colo. App. 1993) (same).

¶16 Second, even if we were to conclude that a paramedic needs to be supervised by a physician, the record establishes that he was supervised by Dr. Rush. Contrary to Neppl's assertion, nothing in section 42-4-1301.1(6)(a), or the blood draw form on which he relies, required Dr. Rush to be physically present and supervising each blood draw.

¶17 In People v. Mari , 187 Colo. 85, 528 P.2d 917 (1974), the supreme court rejected a similar argument based on a prior version of Colorado's driving under the influence/implied consent statute. That statute provided that "no person except a physician, registered nurse, or a person whose normal duties include withdrawing blood samples under the supervision of a physician or registered nurse shall be entitled to withdraw blood." § 13-5-30(3)(b), C.R.S. 1967. The defendant argued that because the medical technologist who performed the blood draw in that case "was not, at the moment she withdrew defendant's blood, acting under the supervision of a doctor or registered nurse, she did not come within the class of persons qualified by the statute to withdraw blood." Mari , 187 Colo. at 87, 528 P.2d at 919. The court disagreed:

We do not read the statute to require on-the-spot supervision; on the contrary, if [the person's] normal duties as a medical technologist include withdrawing blood samples while she is under the supervision of a physician or registered nurse, she qualifies notwithstanding the fact that supervision was not present at this time. We read the 'under supervision' clause as referring to any 'normal duties' and not as a requirement that the supervision be present at the time the technician withdraws the blood.

Id.

¶18 Consistent with Mari 's reasoning, we conclude that the paramedic was authorized to draw Neppl's blood, and that the statute does not require a supervisor to be physically present for a blood draw. We further note that, even if the blood draw had not strictly comported with the statutory or regulatory requirements, such deficiency would have merely impacted the weight to be afforded the test results, not its admissibility. See Dye v. Charnes , 757 P.2d 1162, 1163 (Colo. App. 1988) (failure to establish whether nurse met criteria in regulations went to weight, rather than admissibility, of blood test results in driver's license revocation proceeding); see also Siddall v. Dep't of Revenue , 843 P.2d 85, 87 (Colo. App. 1992) (any deficiency in evidence as to whether blood test kit complied with applicable regulatory requirements went to weight given to results, not their admissibility).

¶19 Neppl also argues that the district court erred in applying both section 42-4-1301(6)(f), C.R.S. 2018, which pertains to the admissibility of chemical tests in driving under the influence proceedings, and certain Colorado Department of Public Health and Environment regulations describing the persons authorized to collect blood specimens. He reasons that these provisions do not apply here because he only challenged the blood draw under section 42-4-1301.1(6)(a), which is "separate and apart" from any regulatory requirements. We need not address this argument, however, because (1) we have already concluded that the paramedic's blood draw was authorized under section 42-4-1301.1(6)(a) ; and (2) the district court's analysis is not necessarily controlling or relevant since we occupy the same position as it when reviewing the Department's actions. See Haney , ¶ 14.

C. Neppl's Consent

¶20 Neppl last contends that he did not voluntarily consent to the blood draw because his consent "was premised on the belief that a legally authorized person would be performing his blood draw." But at the administrative revocation hearing, Neppl never argued that he did not voluntarily consent to the blood draw. Because he raised this issue for the first time on appellate review, we decline to address it. See Tate , 155 P.3d at 647. In any event, even if we were to assume the record somehow showed that Neppl's consent was conditioned on the blood draw being performed by a legally authorized person, we have upheld the hearing officer's determination that the paramedic was so authorized.

III. Conclusion

¶21 The district court's judgment is affirmed.

JUDGE WEBB and JUDGE ROMÁN concur.


author: Opinion by JUDGE TERRY

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Darius Javonmarquise SLAUGHTER, Defendant-Appellee.
    Court of Appeals No. 18CA0842
    Colorado Court of Appeals, Division I.
    Announced February 21, 2019
    George H. Brauchler, District Attorney, Jacob Edson, Chief Deputy District Attorney, Centennial, Colorado, for Plaintiff-Appellant
    Megan A. Ring, Colorado State Public Defender, Jessica Sommer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellee
   Opinion by JUDGE TERRY

¶1 A prosecutor seeking to charge an accused with felony strangulation has multiple charging options available under Colorado criminal statutes.

¶2 The crime can be charged under the first degree assault statute, section 18-3-202(1)(g), C.R.S. 2018. To obtain a conviction under that statute, the prosecution would have to prove that the accused caused serious bodily injury to the victim.

¶3 If the prosecution wants to dispense with the requirement to prove serious bodily injury, it can charge the accused under the second degree assault statute, section 18-3-203, C.R.S. 2018. Two charging options are available for a strangulation crime under that statute, neither of which would require proof of serious bodily injury: under subsection (1)(b) or under subsection (1)(i).

¶4 A charge under subsection (1)(b) would require proof of use of a deadly weapon. Unless charged with a crime of violence sentence enhancer, a strangulation charge under subsection (1)(i) would not require proof of use of a deadly weapon.

¶5 As we will discuss, the penalty available for a strangulation charged under subsection (1)(i) if charged as a crime of violence under section 18-1.3-406(2)(a)(I)(A), C.R.S. 2018, is substantially more severe than if an accused is charged merely under subsection (1)(b), even though conviction for both crimes would require proof of use of a deadly weapon.

¶6 The prosecution charged defendant, Darius Javonmarquise Slaughter, with strangulation under the second degree assault statute, section 18-3-203(1)(i). If it were allowed to charge Slaughter under subsection (1)(i) and also charge a sentence enhancer under the crime of violence sentencing statute, such charging would subject him to harsher and disparate sentencing, as compared with other persons accused of engaging in the same conduct, based solely on the prosecution's charging decision. Thus, his right to equal protection under the Colorado Constitution would be violated. For that reason, we conclude that the district court did not err in denying the prosecution's motion to add a charge under the crime of violence statute, and we affirm the court's order dismissing the added crime of violence charge.

I. Procedural History

¶7 The People filed this interlocutory appeal in accordance with section 16-12-102(1), C.R.S. 2018, and C.A.R. 4(b)(3). The prosecution charged Slaughter with second degree assault by strangulation under section 18-3-203(1)(i) for allegedly strangling the victim with his hands. The People later moved to add a new count under the crime of violence sentencing statute, section 18-1.3-406(2)(a)(I)(A), based on their assertion that Slaughter used his hands as a deadly weapon.

¶8 Though the trial court initially granted the motion, it later reconsidered that ruling on Slaughter's motion and dismissed the charged sentence enhancer. The court reasoned that, as applied to Slaughter, such a charge violated his right to equal protection of the laws guaranteed by the Colorado Constitution.

II. Constitutional and Statutory Background

¶9 Under the Fourteenth Amendment to the United States Constitution, no state shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1.

¶10 In harmony with the Federal Constitution, our supreme court has held that the right to equal protection of the laws is included within due process of law as provided in article II, section 25, of the Colorado Constitution. People v. Marcy , 628 P.2d 69, 83 (Colo. 1981). Even so, distinguishing United States v. Batchelder , 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979), which construed the Federal Constitution, the court in Marcy emphasized that, under the Colorado Constitution, "equal protection of the laws requires that statutory classifications of crimes be based on differences that are real in fact and reasonably related to the general purposes of criminal legislation." Marcy , 628 P.2d at 74. In this respect, equal protection under the Colorado Constitution is more far-reaching than it is under the Federal Constitution. Slaughter argues an equal protection violation only under the Colorado Constitution.

¶ 11 Equal protection of the law assures that those who are similarly situated will be afforded like treatment. People v. Mozee , 723 P.2d 117, 126 (Colo. 1986). When two criminal statutes provide different penalties for identical conduct, a defendant is denied equal protection under the law if he is convicted under the harsher statute. Id. And, "when separate statutes prescribe different penalties for what ostensibly might be different acts but offer no intelligent standard for distinguishing between and among these acts, those statutes deny equal protection under the law." People v. Griego , 2018 CO 5, ¶ 35, 409 P.3d 338 (citing Marcy , 628 P.2d at 75 ).

¶12 Under the Colorado Constitution, "if a criminal statute [provides] different penalties for identical conduct, a person convicted under the harsher penalty is denied equal protection unless there are reasonable differences or distinctions between the proscribed behavior[s]." People v. Stewart , 55 P.3d 107, 114 (Colo. 2002).

¶13 In keeping with Colorado's equal protection guarantee, we scrutinize the statute under which defendant was charged, as well as the statute under which the prosecution seeks to charge him and the broader statutory scheme, to determine whether these standards are met.

III. Standards of Review and Principles of Statutory Construction

¶14 We review the constitutionality of statutes de novo. Colo. Union of Taxpayers Found. v. City of Aspen , 2018 CO 36, ¶ 13, 418 P.3d 506. Statutes are presumed constitutional, id. , and a party challenging the constitutionality of a statute must prove unconstitutionality beyond a reasonable doubt, TABOR Found. v. Reg'l Transp. Dist. , 2018 CO 29, ¶ 15, 416 P.3d 101.

¶15 We construe defendant's arguments as raising a challenge to the relevant statutes as applied to the prosecution's charging decision. To prevail on an as-applied constitutional challenge, the challenging party must establish that the statute is unconstitutional under the circumstances in which the plaintiff has acted or proposes to act. Qwest Servs. v. Blood , 252 P.3d 1071, 1085 (Colo. 2011).

¶16 The interpretation of sections 18-3-203(1)(i) and 18-1.3-406(2)(a)(I)(A) is a question of law which we review de novo. Cowen v. People , 2018 CO 96, ¶ 11, 431 P.3d 215. When interpreting a statute, our primary purpose is to ascertain and give effect to the General Assembly's intent. Id . We start by examining the plain meaning of the statutory language. Id . We give consistent effect to all parts of the statute and construe each provision in harmony with the overall statutory design. Id ., ¶ 13.

IV. The Disparate Charging Options Available for the Same Strangulation Conduct Render the Statutory Scheme Ambiguous

¶17 Before 2016, a prosecutor seeking to charge an accused for strangulation of a victim could charge under the first degree assault statute, section 18-3-202. Subsection (1)(a) of that statute provided, and still provides:

(1) A person commits the crime of assault in the first degree if:
(a) With intent to cause serious bodily injury to another person, he causes serious bodily injury to any person by means of a deadly weapon [.]

§ 18-3-202(1)(a) (emphasis added).

¶18 Also before 2016, a prosecutor seeking to charge an accused for strangulation of a victim under the second degree assault statute was limited to charging under subsections (1)(b), (1)(d), or (1)(g) of section 18-3-203(1), C.R.S. 2015, each of which also required either proof of use of a deadly weapon or the infliction of bodily injury.

¶19 In 2016, the General Assembly amended the second degree assault statute to add the provision under which defendant was charged. Ch. 327, sec. 1, § 18-3-203, 2016 Colo. Sess. Laws 1328. That section states that a person commits second degree assault if,

[w]ith the intent to cause bodily injury, he or she applies sufficient pressure to impede or restrict the breathing or circulation of the blood of another person by applying such pressure to the neck or by blocking the nose or mouth of the other person and thereby causes bodily injury.

§ 18-3-203(1)(i). Thus, for the first time, an accused could be charged with felony assault for strangulation without the need for the prosecution to prove use of a deadly weapon or serious bodily injury.

¶20 The prosecution now seeks to add a charge against Slaughter under the crime of violence sentencing statute, section 18-1.3-406(2)(a)(I)(A) and (II)(C), based on the use of his hands as a deadly weapon. As we have noted above, the prosecution, at least in theory, could have charged him with second degree assault (not specifying acts amounting to strangulation) under section 18-3-203(1)(b).

¶21 Subsection (1)(b) provides that a person commits second degree assault if, "[w]ith intent to cause bodily injury to another person, he or she causes such injury to any person by means of a deadly weapon ." (Emphasis added.) An accused convicted under subsection (1)(b) is subject to sentencing under the crime of violence sentencing statute, but with an important difference: under the legislature's 2016 amendment to section 18-3-203(2)(c)(II), "notwithstanding the provisions of [the crime of violence sentencing statute], the court is not required to sentence the defendant [convicted under subsection (1)(b) ] to the department of corrections for a mandatory term of incarceration." § 18-3-203(2)(c)(II).

¶22 As a result, a person convicted under subsection (1)(b) would be subject to potentially lighter sentencing-even to probation-than the prosecution seeks to impose here if Slaughter is convicted under subsection (1)(i), even though a subsection (1)(b) offense is a per se crime of violence.

¶23 Given the potential for disparate charges and sentencing arising from the exact same conduct, we conclude that the interplay between sections 18-3-203(1)(b), 18-3-203(1)(i), and 18-1.3-406(2)(a)(I) renders ambiguous the statutory scheme for the charging and sentencing of second degree assault by strangulation.

¶24 We therefore review the legislative history of the 2016 amendments to determine the legislative intent behind these statutes. See People in Interest of M.W. , 796 P.2d 66, 68 (Colo. App. 1990) (statute susceptible of more than one interpretation must be construed in light of its legislative intent and purpose); see also Farmers Ins. Exch. v. Bill Boom Inc. , 961 P.2d 465, 470 (Colo. 1998) (to determine legislative intent, an appellate court may consider the textual context, the statute's legislative history, the state of the law before the legislative enactment, the problem addressed by the legislation, and the relationship between the particular legislation and other relevant legislative provisions).

V. Legislative History of 2016 Amendments

¶25 Section 18-3-203(1)(i) originated as House Bill 16-1080. Statements from the Legislative Council Staff Research Note accompanying the bill show that the legislature intended the new strangulation subsection to institute a change from prosecutors' past practice. See Gen. Assemb. Legis. Council, Research Note for H.B. 1060, 70th Gen. Assemb., 2d Reg. Sess. (2016). Before the passage of House Bill 16-1080 and Senate Bill 16-102 in 2016, prosecutors charged strangulation under section 18-3-203(1)(b), see Assault by Strangulation: Hearing on H.B. 16-1080 before the H. Judiciary Comm. , 70th Gen. Assemb., 2d Reg. Sess. (Feb. 9, 2016) (statement of Mark Hurlbert, Assistant Arapahoe County District Attorney), which at that time carried with it crime of violence sentencing, including mandatory minimums.

¶26 According to testimony before the General Assembly in 2016, the requirement to prove that hands were deadly weapons under subsection (1)(b) was seen as an impediment to proving that an accused who committed strangulation through the use of hands had committed a felony. Particularly in more rural jurisdictions, prosecutors had difficulty obtaining expert testimony that would be necessary to establish that a defendant's hands were used as a deadly weapon so that a felony level crime could be proved. Assault by Strangulation: Hearing on H.B. 16-1080 before the H. Judiciary Comm. , 70th Gen. Assemb., 2d Reg. Sess. (Feb. 9, 2016) (statement of Mark Hurlbert, Assistant Arapahoe County District Attorney). As a result, strangulation offenses were resulting in convictions only for a class 1 misdemeanor under the third degree assault statute, section 18-3-204, C.R.S. 2018, or for a municipal code violation. See Assault by Strangulation: Hearing on H.B. 16-1080 before the H. Judiciary Comm. , 70th Gen. Assemb., 2d Reg. Sess. (Feb. 9, 2016) (statement of Rep. Mike Foote, sponsor of H.B. 16-1080).

¶27 A perception emerged that a serious form of domestic violence was not resulting in appropriately severe sentencing. See Assault by Strangulation: Hearing on H.B. 16-1080 before the S. Judiciary Comm. , 70th Gen. Assemb., 2d Reg. Sess. (Apr. 27, 2016) (statement of Rep. John Cooke, Member, S. Judiciary Comm., sponsor of H.B. 16-1080) ("We want to increase this to a felony[.]"); see also Assault by Strangulation: Hearing on H.B. 16-1080 before the H. Judiciary Comm. , 70th Gen. Assemb., 2d Reg. Sess. (Feb. 9, 2016) (statement of Rep. Mike Foote, sponsor of H.B. 16-1080).

¶28 Reflecting these concerns, the legislature amended the first and second degree assault statutes. New statutory language was proposed to deal specifically with strangulation, resulting in the enactment of section 18-3-202(1)(g) and section 18-3-203(1)(i).

¶29 The new addition to the first degree assault statute criminalizes strangulation that is done "[w]ith the intent to cause serious bodily injury" and also "causes serious bodily injury." § 18-3-202(1)(g).

¶30 More of interest to us here, section 18-3-203(1)(i) for the first time specifically included acts that amount to strangulation in the second degree assault statute. One of the bill's sponsors pointed out that "[t]he elements [of section 18-3-203(1)(i) ] don't require the finding of hands as a deadly weapon." Assault by Strangulation: Hearing on H.B. 16-1080 before the H. Judiciary Comm. , 70th Gen. Assemb., 2d Reg. Sess. (Feb. 9, 2016) (statement of Rep. Mike Foote, sponsor of H.B. 16-1080).

¶31 Also unlike section 18-3-202(1)(g), section 18-3-203(1)(i) does not mention the element of serious bodily injury.

¶32 While House Bill 16-1080 was the impetus for the addition of the first and second degree assault by strangulation crimes in sections 18-3-202(1)(g) and 18-3-203(1)(i), Senate Bill 16-102 eliminated mandatory minimum sentences for certain other second degree assault crimes in section 18-3-203(2)(c)(II). The legislative history does not answer whether the legislature intended the sentencing disparities that would result for strangulation crimes based on a prosecutor's charging decisions, or whether the 2016 General Assembly simply ran out of time during the legislative session to reconcile the House and Senate bills before their enactment. In the legislature's discussion of these bills, we find no mention of whether a prosecutor could add a crime of violence sentence enhancer or whether doing so would cause an equal protection problem.

¶33 In any event, the legislature did not demonstrate a clear intent to prevent the prosecution from charging subsection (1)(i) with a crime of violence sentence enhancer pursuant to section 18-1.3-406(2)(a)(I)(A). Thus, it would be permissible under the statutory scheme to do as the People request - to charge defendant with a crime of violence sentence enhancer - unless such charging would result in an equal protection violation.

¶34 We turn next to whether such a violation would arise if the People were allowed to so charge Slaughter.

VI. Strangulation Charges Under Sections 18-3-202(1)(g), 18-3-203(1)(b), and 18-3-203(1)(i)

¶35 It is important to the analysis here that, unlike subsection (1)(b) of the second degree assault statute, which requires proof that an accused intentionally caused bodily injury to another person "by means of a deadly weapon," § 18-3-203(1)(b), subsection (1)(i) allows a conviction of second degree assault by strangulation without requiring proof of use of a deadly weapon.

¶36 A prosecutor anticipating difficulty in proving serious bodily injury may avoid charging strangulation under the first degree assault statute and opt instead to bring charges under the second degree assault statute, which requires only proof of bodily injury. And a charge under section 18-3-203(1)(i) would not require proof of use of a deadly weapon, unless a crime of violence sentence enhancer is also charged.

A. Comparative Sentencing Options for Strangulation Charges

¶37 We now delve deeper into the sentencing discrepancies created by the statutory scheme, with an eye toward how those discrepancies affect equal protection analysis.

1. Equal Protection Standards

¶38 To determine whether the charging of a crime violates the defendant's right to equal protection of the laws guaranteed by the Colorado Constitution, we begin by examining the conduct prohibited by the applicable criminal statutes. See Stewart , 55 P.3d at 114-18 ; Marcy , 628 P.2d at 73-82. We examine the statutory language of the described crimes to determine if the conduct they address contains differences that are both real in fact and reasonably related to the general purposes of criminal legislation. Marcy , 628 P.2d at 74.

¶39 If criminal statutes provide for different penalties for identical conduct, a person convicted under the statute with the harsher penalty is denied equal protection unless there are reasonable differences or distinctions between the prohibited behaviors. People v. Richardson , 983 P.2d 5, 6-7 (Colo. 1999).

2. Discussion

¶40 As mentioned above, second degree assault by strangulation under section 18-3-203(1)(i), when charged with a crime of violence sentence enhancer based on the use of a deadly weapon under section 18-1.3-406(2)(a)(I)(A), carries with it a harsher penalty than does a charge of second degree assault causing bodily injury with a deadly weapon under section 18-3-203(1)(b). Even though the prosecution in both instances would have to present proof of use of a deadly weapon, the former offense, when charged as a crime of violence, subjects a defendant to a much harsher penalty than does the latter offense.

¶41 We conclude that the conduct prohibited by subsection (1)(i) when charged with the crime of violence sentence enhancer, as compared with the conduct prohibited by subsection (1)(b), lacks differences that are both real in fact and reasonably related to the general purposes of criminal legislation.

a. Second Degree Assault by Strangulation Without Crime of Violence Charges

¶42 Given the current statutory scheme, an accused charged under the second degree assault statute with use of a deadly weapon (not specifying strangulation) under section 18-3-203(1)(b), and without crime-of-violence sentence enhancement, is eligible for a flexible sentencing range that includes an option for probation. See § 18-3-203(2)(c)(II) (For such a crime, "the court is not required to sentence the defendant to the department of corrections for a mandatory term of incarceration.").

¶43 Without crime of violence sentence enhancement, an accused charged and convicted under section 18-3-203(1)(i), even though not charged as having used a deadly weapon , is eligible for a presumptive sentence ranging from two to eight years of imprisonment. See § 18-1.3-401(1)(a)(V)(A), (1)(b)(XVIII), (10)(a), C.R.S. 2018. Still, such an accused can be eligible for sentencing below that presumptive range, as provided in section 18-1.3-401(6), and could be sentenced instead to probation.

b. With Crime of Violence Charges

¶44 If - as the prosecution seeks to do here - an accused is charged with both strangulation under the second degree assault statute, section 18-3-203(1)(i), and with a crime of violence sentence enhancer under section 18-1.3-406(2)(a)(I)(A) and (2)(a)(II)(C), and the jury finds against the accused on both charges, the sentencing range does not include a probation option.

¶45 The minimum sentence for such a conviction would be five years, and the maximum sentence would be increased to sixteen years. See § 18-1.3-406(1)(a) (requiring mandatory minimum sentencing to incarceration for persons convicted of crimes of violence, ranging from "at least the midpoint in, but not more than twice the maximum of, the presumptive range provided for such offense in section 18-1.3-104(1)(a), as modified for an extraordinary risk crime pursuant to section 18-1.3-401(10), without suspension"); § 18-1.3-406(7) (requiring sentencing court to add five years for conviction of crime of violence, consecutive to any other sentence).

c. Comparison of Sentencing Outcomes

¶46 Clearly, the sentence for the crime of strangulation under the second degree assault statute, section 18-3-203(1)(i), if charged with a crime of violence sentence enhancer, is substantially harsher even than one charged under section 18-3-203(1)(b), which requires use of a deadly weapon. We next consider whether it is an equal protection violation to allow such disparate sentencing results based solely on a prosecutor's charging decision.

B. Equal Protection Violation Based on Disparate Treatment

¶47 Courts have an obligation "to 'avoid interpretations that invoke constitutional deficiencies.' " Catholic Health Initiatives Colo. v. City of Pueblo, Dep't of Fin. , 207 P.3d 812, 822 (Colo. 2009) (quoting Adams Cty. Sch. Dist. No. 50 v. Heimer , 919 P.2d 786, 792 (Colo. 1996) ). "[A]n evenhanded application of the law turns on reasonably intelligible standards of criminal culpability." Marcy , 628 P.2d at 80. As a result, any definition of a crime "must be sufficiently coherent and discrete that a person of average intelligence can reasonably distinguish it from conduct proscribed by other offenses." Id. at 80-81.

¶48 As demonstrated by the sentencing scenarios discussed above, the prosecution's decision to try to charge defendant with second degree assault by strangulation under section 18-3-203(1)(i) with the crime of violence sentence enhancer for use of his hands as deadly weapons, if agreed to by the court, would put him in a position to receive a much harsher sentence than if he had just been charged with second degree assault using his hands as deadly weapons under section 18-3-203(1)(b). This creates the potential for greatly disparate treatment of defendants facing strangulation charges where it is alleged that their hands were used as deadly weapons. See People v. Mumaugh , 644 P.2d 299, 301 (Colo. 1982) (To allow a defendant "to suffer a more severe penalty for conduct indistinguishable from that which carries a lesser penalty violates equal protection of the laws.").

¶49 The People have not shown how anything other than the prosecutor's charging decision could be used to justify disparate sentences for two defendants who engaged in precisely the same conduct.

¶50 The requirement of equal protection that the differences in prohibited conduct must be "real in fact" is meant to exclude differences that are merely technical, conceptual, or semantic. See Marcy , 628 P.2d at 78 (proscribed conduct "without a sufficiently pragmatic difference" is insufficient in equal protection inquiry); People v. Calvaresi , 188 Colo. 277, 281-82, 534 P.2d 316, 318 (1975) ("Classification of persons under the criminal law must be under legislation that is reasonable and not arbitrary," and, to comport with equal protection, a difference in sentencing regimes must not rest on "shifting sands of semantics.").

¶51 To allow such disparate results in outcomes for strangulation cases, given no meaningful distinction in the criminal conduct and based solely on the prosecutor's inclination to charge in a particular manner, is indeed to deny equal protection of the law. The potential for disparate charging decisions causes the statutory classification of these crimes to lack "differences that are real in fact and reasonably related to the general purposes of criminal legislation." Marcy , 628 P.2d at 71, 74 (finding equal protection violation where "the crime of first degree murder by extreme indifference [was] not sufficiently distinguishable from second degree murder to warrant the substantial differential in penalty authorized by the statutory scheme").

¶52 We therefore conclude that, as applied to the circumstances here, where the prosecution seeks to charge Slaughter with strangulation under section 18-3-203(1)(i) together with the crime of violence sentence enhancer under section 18-1.3-406(2)(a)(I)(A), such charging would cause a violation of defendant's right to equal protection of the laws, and thus would be unconstitutional.

VII. Deference to Prosecutorial Discretion is Unwarranted When Such Discretion Results in an Equal Protection Violation

¶53 The People rely on section 18-1-408(7), C.R.S. 2018, which codifies the concept of prosecutorial discretion. That section provides:

If the same conduct is defined as criminal in different enactments or in different sections of this code, the offender may be prosecuted under any one or all of the sections or enactments subject to the limitations provided by this section. It is immaterial to the prosecution that one of the enactments or sections characterizes the crime as of lesser degree than another, or provides a lesser penalty than another, or was enacted by the general assembly at a later date than another unless the later section or enactment specifically repeals the earlier.

§ 18-1-408(7).

¶54 Courts are "properly hesitant to examine the decision whether to prosecute." Wayte v. United States , 470 U.S. 598, 607-08, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985) (explaining why the prosecution's charging decisions are "particularly ill-suited to judicial review").

¶55 People v. Bagby , 734 P.2d 1059, 1061-62 (Colo. 1987), discussed factors to be considered by a court in determining whether the legislature's enactment of a specific statute precludes prosecution under a general statute. Id. Because it did not discuss equal protection, however, Bagby is not instructive in this context, and we look, instead, to our supreme court's precedent regarding the limits imposed on prosecutorial discretion by equal protection requirements.

¶56 Though prosecutors generally have discretion in charging decisions, we agree with the district court that the prosecution is not permitted to charge an accused in a manner that would result in a violation of equal protection if the defendant were found guilty and sentenced to a harsher penalty than another accused might receive for identical assault conduct. See Stewart , 55 P.3d at 118 ("Generally, the prosecution has discretion to determine what charges to file when a defendant's conduct violates more than one statute. See § 18-1-408(7), 6 C.R.S. (2001). There are certain circumstances in which this general rule does not apply." (citing People v. Smith , 938 P.2d 111, 115-16 (Colo. 1997) ; Bagby , 734 P.2d at 1061-62 )).

¶57 As the supreme court said in Griego , "when separate statutes prescribe different penalties for what ostensibly might be different acts but offer no intelligent standard for distinguishing between and among these acts, those statutes deny equal protection under the law." Griego , ¶ 35.

¶58 "[T]o overcome a challenge under the equal protection clause, the statutory classification [of crimes] must turn on 'reasonably intelligible standards of criminal culpability,' and any definition of a crime must be 'sufficiently coherent and discrete that a person of average intelligence can reasonably distinguish it from conduct proscribed by other offenses.' " Id. at ¶ 36 (quoting Marcy , 628 P.2d at 80-81 ).

¶59 As in Griego , identical behavior could result in different charging decisions and "dramatically different punishments." Id. at ¶ 38. If defendant A engages in an act of strangulation and is charged with second degree assault with a deadly weapon for the use of his hands under subsection (1)(b), but is eligible for probation, while defendant B is charged under subsection (1)(i) with assault with a deadly weapon by strangulation with his hands as a deadly weapon, but is eligible only for a minimum sentence of five years in prison because the crime was charged with a crime of violence sentence enhancer, defendant B's right to equal protection is violated because there is no intelligible standard for distinguishing between the prohibited acts.

¶60 The prosecution cannot rely on its prosecutorial discretion to sidestep Slaughter's equal protection challenge.

VIII. "Inherent Deadliness"

¶61 Slaughter points out the inherent deadliness of the strangulation conduct described by section 18-3-203(1)(i). But to resolve the equal protection violation raised in this case, we do not need to address his assertion that all cases of strangulation are committed with a deadly weapon. The potential we have described for disparate sentencing treatment of persons accused and convicted of strangulation, based solely on prosecutorial discretion, is enough by itself to establish the equal protection violation of which defendant complains.

IX. Conclusion

¶62 We conclude that the combination of the prosecution's charge against Slaughter under section 18-3-203(1)(i) and the crime of violence charge under section 18-1.3-406(2)(a)(I)(A) renders these statutory provisions unconstitutional as applied to him. Because of this equal protection violation, the prosecution's motion to charge him with a crime of violence sentence enhancer under section 18-1.3-406(2)(a)(I)(A) should have been denied, and we affirm the district court's order dismissing the added crime of violence count.

JUDGE TAUBMAN and JUDGE FOX concur.