author: Judge TAUBMAN.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Columbus Michael WHITE, Defendant-Appellant.
    No. 99CA2415.
    Colorado Court of Appeals, Div. II.
    June 20, 2002.
    Rehearing Denied Sept. 26, 2002.
    Certiorari Denied Feb. 24, 2003.

      Ken Salazar, Attorney General, Elizabeth Rohrbough, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    James Grimaldi, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge TAUBMAN.

Defendant, Columbus Michael White, appeals the judgment of conviction entered on a jury verdict finding him guilty of felony murder, second degree murder, and second degree burglary. We affirm the felony murder conviction but vacate the convictions for second degree murder and second degree burglary.

I. Facts and Procedural History

On the afternoon of April 28, 1998, the victim, an eighty-six year-old grandmother, was attacked and killed inside her home. She had been bludgeoned and stabbed several times, her pants were lowered and an “X” was carved into her buttock. Police determined that the cause of death was a dislocated neck.

Police found the following evidence at the crime scene: (1) the victim’s hammer, which had been smashed into her television screen; (2) a knife in the kitchen sink; (3) bloody shoeprints on the floor near the bathroom where the victim was found; (4) emptied boxes of single serving packets of coffee and oatmeal on the kitchen floor; and (5) fingerprints, later determined to be defendant’s, on the outside window sill.

Using dogs, the police followed the intruder’s scent from the victim’s house to the house of defendant’s girlfriend. Inside the girlfriend’s house, police found defendant’s bloody tennis shoes. Testing later revealed that the sole pattern of the tennis shoes matched the shoeprints found inside the victim’s house, and the victim’s blood matched the blood found on the shoes. Police also found single serving packets of coffee and oatmeal in the girlfriend’s house. The girlfriend told police that defendant brought the packets of food to her house.

Two witnesses also testified that they saw a person fitting defendant’s description near the victim’s home on the afternoon she was murdered.

The police contacted defendant at his father’s house at 1:30 a.m. on the morning after the murder. A family friend had invited the police to enter. While police interviewed defendant and his father, a detective noticed more packets of oatmeal. The detective also noticed that defendant had blood splattered on his jeans. Testing later revealed that the blood on defendant’s jeans matched the victim’s blood. Police subsequently arrested defendant and charged him with felony murder, first degree murder (after deliberation), and second degree burglary. Defendant was seventeen years old at the time of the murder.

Defendant filed a motion to suppress all evidence that police seized at his father’s and girlfriend’s homes, as well as all statements he made to police. After a four-day hearing, the trial court denied defendant’s motion in a detailed and well-written twenty-five page order.

Defendant maintained at trial that two separate and unrelated burglaries had occurred at the victim’s house on the day of the murder. During the first burglary, he contended, another intruder had murdered the victim. The second burglary, for which he admitted responsibility, allegedly occurred after the victim was already dead.

A jury convicted defendant of felony murder, second degree burglary, and second degree murder, a lesser included offense of first degree murder (after deliberation). The trial court sentenced defendant to life in prison on the felony murder and concurrent sentences of forty-eight years on the second degree murder and twenty-four years on the burglary. This appeal followed.

II. Suppression Issues

Defendant advances four different reasons why the trial court erred when it denied his motion to suppress his statements and the evidence obtained at the homes of his father and girlfriend. We disagree.

Both the United States and Colorado Constitutions afford protection from unreasonable searches and seizures. See U.S. Const, amend. IV; Colo. Const, art. II, § 7.

However, the Fourth Amendment does not protect a defendant from police intrusions that do not abridge a legitimate expectation of privacy. The existence of a legitimate expectation of privacy must be determined after examining all the facts and circumstances in a particular case. People v. Shorty, 731 P.2d 679 (Colo.1987).

Further, under the Fourth Amendment, a warrantless search of a person’s home is presumptively unreasonable. Petersen v. People, 939 P.2d 824 (Colo.1997).

When reviewing a trial court’s suppression ruling, we must determine whether the trial court’s factual findings are adequately supported by competent evidence in the record. If they are, we will not disturb them. People v. Gennings, 808 P.2d 839 (Colo.1991); People v. Graham, 53 P.3d 658 (Colo.App.2001). We must also determine whether the trial court applied the proper legal standard to the facts of the case. People v. Jordan, 891 P.2d 1010 (Colo.1995); People v. Graham, supra. A trial court’s legal conclusions are subject to de novo review. People v. Romero, 953 P.2d 550, 553 (Colo.1998).

A. Tennis Shoes Seized at the Girlfriend’s House

We reject defendant’s various arguments that his tennis shoes should have been suppressed.

1. Common Authority

Defendant first contends that because he was a licensed guest at his girlfriend’s home, she did not have common authority to consent to the police seizure of his tennis shoes. However, we conclude, as discussed below, that the girlfriend had common authority to invite police into her bedroom and that the plain view doctrine justified the police seizure of his tennis shoes.

The prohibition against warrantless searches does not apply when voluntary consent has been obtained, either from the individual whose property is searched or from a third party who possesses common authority over the property. People v. Breidenbach, 875 P.2d 879 (Colo.1994).

A third party does not have authority to consent to a search simply by virtue of ownership of the property. Rather, the third-party’s authority rests on mutual use of the property by persons generally having joint access or control for most purposes. People v. Breidenbach, supra.

To establish common authority, the evidence must show such mutual use, that it is reasonable to recognize that any of the cohabitants has the right to permit inspection and that the others have assumed the risk that one of them might permit the area to be searched. People v. Kellum, 907 P.2d 712 (Colo.App.1995).

Here, the trial court found that the girlfriend rented the house and paid the bills and that defendant stayed there frequently and kept some clothes there. The court concluded that she had control over and access to the entire home.

Further, the trial court found that although the police had the girlfriend’s house under surveillance because the police dogs had tracked a scent to her house, the police had initially contacted the girlfriend because she reported that her car had been stolen. She subsequently invited the police into her house, where she discussed her relationship with defendant and the murder at issue here. While they were in her home, the police and the girlfriend began talking about her handcrafted furniture in the living room. The girlfriend indicated that she had more furniture in her bedroom and asked the police if they wanted to see it. A police officer followed her into the bedroom and, as he entered the bedroom, he saw a pair of tennis shoes on the floor near the doorway with one shoe lying on its side. The officer noticed that the shoes appeared to have blood on them. This officer had seen the shoeprints on the floor of the victim’s house. He noticed that the soles of the tennis shoes matched those shoeprints. The girlfriend told police that the shoes belonged to defendant. She then she signed a consent to search form, and subsequently, the police seized the tennis shoes, other clothing, and packets of food.

Defendant argues that although the girlfriend had authority to consent to a search of the premises, she could not authorize a seizure of his tennis shoes. However, based on our review of the record, we conclude that the girlfriend had common authority to invite police into her home and into her bedroom, where, under the plain view doctrine, the police legally seized his tennis shoes. The fact that she consented to the seizure of his tennis shoes is irrelevant.

2. Plain View

Defendant contends that because police lacked probable cause to believe that the tennis shoes contained any material evidence of a crime, the trial court erred when it determined that the plain view exception to the warrant requirement applied to the shoes. We disagree.

The “plain view” doctrine is another well-established exception to the warrant requirement. The plain view doctrine justifies the warrantless seizure of evidence when an object in plain view possesses a readily apparent incriminating character. People v. Kluhsman, 980 P.2d 529 (Colo.1999).

Police may seize evidence in plain view if: (1) the initial police intrusion onto the premises was legitimate; (2) the police had a reasonable belief that the evidence seized was incriminating; and (3) the police had a lawful right of access to the object. People v. Kluhsman, supra, 980 P.2d at 534.

The trial court’s findings discussed above are supported by the record, and thus the trial court properly concluded that the shoes were subject to the plain view exception to the warrant requirement. The officer observed the tennis shoes as a result of a lawful entry into the girlfriend’s bedroom— he was invited in — and the incriminating character of the tennis shoes was immediately apparent.

Further, we disagree with defendant’s contention that the Supreme Court’s decision in Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987) requires a contrary result. In Hicks, the Supreme Court determined that a police officer’s act of moving stereo equipment to reveal serial numbers did not fall within the plain view exception to the warrant requirement. Here, in contrast, the police officer did not pick up or move the tennis shoes before he noticed their incriminating character.

3. License

To the extent that defendant argues that because he had an unrevoked license to enter and use his girlfriend’s home, she did not have common authority to consent to a search and seizure of his belongings, we note that defendant did not make this argument before the trial court. Therefore, we will not address it for the first time on appeal. See People v. Jansen, 713 P.2d 907, 914 n. 8 (Colo.1986); People v. Young, 987 P.2d 889 (Colo.App.1999).

4. Opportunity to Exercise Fourth Amendment Rights

Again in the alternative, defendant contends that his girlfriend’s consent was ineffective because it was obtained only after the police had denied him the opportunity to exercise his own Fourth Amendment rights by asking him to return to his father’s house before they obtained his girlfriend’s consent to search her house. However, defendant did not raise this issue before the trial court. Therefore, we will not address it on appeal. See People v. Jansen, supra.

B. Police Entry of Porch

Defendant next contends that the police may not enter the curtilage of a home at 1:30 a.m. without a warrant, and therefore, the trial court erred when it denied his motion to suppress the statements made and evidence seized at his father’s home. We disagree.

The area immediately surrounding a private residence, the curtilage, is protected in some cases under the Fourth Amendment. The fact that a search occurs within the curtilage is not dispositive if the area’s public accessibility dispels any reasonable expectation of privacy. For example, in conducting a criminal investigation, a police officer may enter those residential areas that are expressly or impliedly held open to casual visitors. People v. Shorty, supra, 731 P.2d at 682.

Further, law enforcement officers, may constitutionally knock on the door of a residence and seek permission to enter to conduct a search of that residence. People v. Baker, 813 P.2d 331 (Colo.1991).

Here, the trial court found that on the morning after the murder, at 1:30 a.m., the police entered the porch of the father’s house and knocked on the sliding glass door, as they had done when contacting the father on prior.occasions. Further, the court found that the porch door was not always closed and that the residents of the house might not know if a visitor was present unless he or she knocked on the sliding glass door inside the porch. It concluded that, under these circumstances, it was reasonable for the police to enter the porch to contact the residents.

We conclude that the trial court’s findings are supported by the record. Thus, the trial court properly denied defendant’s motion to suppress based upon the porch entry.

C. Entry into the Father’s Home

Defendant contends that the trial court erred when it denied his motion to suppress the statements made and evidence seized at his father’s home because the encounter was not consensual and no exigent circumstances existed. We disagree.

1. Common Authority

Defendant contends that the family friend lacked common authority to consent to the police entry of his father’s home. We agree, but nonetheless conclude that the trial court reached the correct result. See People v. Young, 987 P.2d 889 (Colo.App.1999)(ap-proving suppression ruling on grounds different from those relied on by the trial court).

We note that no Colorado appellate court has addressed the issue, but courts in at least two other jurisdictions have endorsed the view that where a guest is actually present inside a residence when the consent is given, and such consent is merely to a police entry into an area where a visitor would normally be received, such consent is authorized. See Nix v. State, 621 P.2d 1347, 1350 (Alaska 1981)(holding that house guest who occasionally spent the night had apparent authority to allow officer to enter the premises, noting “[i]t would be extraordinary if any house guest lacked such authority”); People v. Shaffer, 111 Ill.App.3d 1054, 67 Ill.Dec. 612, 444 N.E.2d 1096 (1982)(defendant’s brother who was frequent visitor to premises, had actual authority to permit police to enter an area where a visitor would normally be received).

These cases rely on two different theories: apparent authority and actual authority based on a sufficient relationship to the premises searched. We conclude that under either theory, the result here is the same.

The doctrine of apparent authority is well established in Colorado. Apparent authority is not authority at all, but merely the appearance of authority. A search justified by the apparent authority doctrine is not authorized by consent from one with authority to give it. Instead, such a search, without valid consent, does not violate the Fourth Amendment because it is not unreasonable. The doctrine is premised on the points that whether a third party has consented is a question of fact and that mistakes of fact by the police can be reasonable under certain circumstances. Petersen v. People, supra.

Further, the doctrine of apparent authority is related to the Fourth Amendment exclusionary rule, which is intended to deter police from unreasonable searches and seizures. The rule can have no deterrent effect where the police believe that they are acting reasonably and lawfully and only in hindsight is actual authority found to be wanting. Nix v. State, supra, 621 P.2d at 1350.

In contrast, applying the theory of actual authority, the court in Shaffer concluded that the defendant’s brother had a sufficient relationship with the premises to allow the police to enter. The court noted that the brother was not a casual visitor, had never been prevented from inviting friends into defendant’s house, and had invited police into an area where guests would normally be received. Accordingly, the court concluded that the brother had actual authority to permit police entry and that the ensuing search was not unreasonable. People v. Shaffer, supra, 67 Ill.Dec. 612, 444 N.E.2d at 1099.

Finally, both courts quoted a well-known criminal law treatise:

Note must be taken of a case ... where the guest is actually present inside the premises at the time of the giving of the consent and the consent is merely to a police entry of the premises into an area where a visitor would normally be received. There is sound authority that, at least when the guest is more than a casual visitor and “had the run of the house,” his lesser interest in the premises is sufficient to render that limited consent effective. It may also be suggested that the apparent authority doctrine may come into play in these circumstances, so that the police are entitled to assume without specific inquiry as to that person’s status that one who answers their knock on the door has the authority to let them enter.

Nix v. State, supra, 621 P.2d at 1350 (quoting 2 W. LaFave, Search and Seizure § 8.5(e), at 759 (1978)); People v. Shaffer, supra, 67 Ill.Dec. 612, 444 N.E.2d at 1099 (same).

Here, the trial court found that the family friend, an overnight guest, answered the door after the police knocked and invited the officers inside the house. The officers then waited in the living room area while the family friend went to the back of the house to find defendant and his father.

We conclude that under these circumstances, the family friend had authority to consent to the police officers’ entry into that area. Further, we conclude that it was reasonable for the police to believe that they had authority to enter based on the family friend’s invitation. In reaching this conclusion, we do not address whether the family friend could have consented to a search of the entry area because this issue is not before us.

2. Show of Force

Defendant also contends that the family friend was unable to consent because the police gained entry by a show of force. However, defendant did not raise this issue before the trial court. Accordingly, we decline to address it. See People v. Jansen, supra.

3. Entry Based on Pretext

Finally, defendant contends that the police officers misrepresented their reason for entering his father’s house and therefore the entry was not consensual. Specifically, defendant argues that the police entered to arrest him, not to question him. Because defendant raises this issue for the first time on appeal, we will not address it. See People v. Jansen, supra.

D. Father’s Conflict of Interest

Finally, defendant contends that his father was unable to assist him, as a juvenile, in the exercise his Fifth Amendment rights because his father had a conflict of interest. He argues that therefore his statements were not admissible. We disagree.

Section 19-2-511(1), C.R.S.2001, provides:

No statements or admissions of a juvenile, made as a result of [a] custodial interrogation ... shall be admissible in evidence against such juvenile unless a parent, guardian, or legal or physical custodian of the juvenile was present at such interrogation and the juvenile and his or her parent, guardian, or legal or physical custodian were advised of the juvenile’s [constitutional rights].

Generally, an adult must be present at the inteiTOgation of any juvenile to assure that the juvenile’s Fifth Amendment right against self-incrimination will be fully afforded to him or her.

However, if the adult appearing with the juvenile has interests hostile to those of the child, the juvenile is impermissibly deprived of the protection contemplated by the statute. People v. Legler, 969 P.2d 691 (Colo.1998).

To provide the effective guidance and advice contemplated by the statute, a parent must be in a position to give advice freely. People in Interest of L.B., 33 Colo.App. 1, 513 P.2d 1069 (Colo.App.1973)(addressing previous but similar version of statute).

In L.B. and Legler the adult may have had interests hostile to those of the juvenile or may not have been able to give advice freely. In L.B., a division of this court concluded that an incarcerated parent is in no position to provide parental guidance or assistance. People in Interest of L.B., supra, 33 Colo.App. at 2, 513 P.2d at 1070. In Legler, the court determined that the defendant’s grandmother had interests hostile to her grandson after she repeatedly told police that she did not care what happened to him and that she wanted him “put away.” People v. Legler, supra, 969 P.2d at 696; see also People in Interest of P.L.V., 176 Colo. 342, 490 P.2d 685 (1971)(excluding statement taken in parents’ presence where they suspected son of burglarizing their home); of People v. Hayhurst, 194 Colo. 292, 571 P.2d 721 (1977)(that the father was upset with his son’s possible involvement in a crime did not mean that their interests were necessarily adverse).

Here, defendant contends that his father was unable to perform his duties under the statute because he was the subject of an ongoing police investigation involving stolen weapons. Defendant argues that because his father was a convicted felon with possible criminal charges pending, his interests were adverse to those of defendant. However, we cannot conclude that the father’s interests were hostile to defendant’s interests based on the mere fact that defendant’s father was under investigation for possession of a stolen weapon. Nothing in the record demonstrates that defendant’s father could not advise or assist defendant in any way or that he was motivated to assist the police, rather than his son, because of the pending investigation.

Further, we cannot conclude, without more, that his interests were hostile to those of his son, even though the police had visited the father’s house the day before the interrogation to ask about the stolen weapon, and the father testified that he assisted the police in finding the weapon “to keep my butt out of trouble” and that if he did not help “they would be back with more than I wanted.”

Finally, our review of the record reflects that the father advised defendant and even offered explanations to police concerning defendant’s actions and whereabouts on the day of the murder.

In these circumstances, we decline to create a per se rule that a pending criminal investigation of a parent renders his or her interests, assistance hostile or adverse to a child for purposes of § 19-2-511(1). Thus, the trial court did not err when it denied defendant’s motion to suppress on this basis.

III. Discovery

Defendant contends that the trial court violated his constitutional right to due process when it denied his discovery requests for access to police reports for all recent burglaries in Boone, Colorado, the location of the murder. We disagree.

Crim. P. 16(I)(a)(2) provides that “[t]he prosecuting attorney shall disclose to defense counsel any material or information within his possession or control which tends to negate the guilt of the accused as to the offense charged or would tend to reduce the punishment therefor.”

This rule is grounded in the due process requirements identified by the United States Supreme Court in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). People v. Dist. Court, 790 P.2d 332, 337 (Colo.1990).

To qualify for disclosure under Crim. P. 16(I)(a)(2), the exculpatory evidence must be material as measured by the following standard: “The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” People v. Wilson, 841 P.2d 337, 339 (Colo.App.1992).

Further, the regulation of discovery matters lies within the sound discretion of the trial court. People v. Dill, 904 P.2d 1367 (Colo.App.1995), aff'd, 927 P.2d 1315 (Colo.1996).

Here, defendant filed two discovery motions requesting that the prosecution provide him with information concerning investigations of all incidents of burglary or trespass in the area of Boone within the past two years. As grounds, defendant argued that evidence of burglaries committed by other people was exculpatory.

The trial court, after conducting a hearing, partially granted defendant’s request. However, the trial court concluded that defendant had not shown how the requested reports were material or exculpatory. Therefore, it denied his request for burglary information, except for those instances in which defendant or another identified suspect was involved.

We find no abuse of discretion in the court’s ruling. Our review of the record shows that defendant did not establish that his broad discovery request actually sought exculpatory materials.

Defendant further argues that the trial court relied on the wrong provision of Crim. P. 16 when it denied his discovery request. Specifically, he asserts that the trial court should have granted his motion as a discretionary request under Crim. P. 16(I)(d). We disagree.

Crim. P. 16(I)(d)(l) provides that “[t]he court in its discretion may, upon motion, require disclosure to defense counsel of relevant material and information not covered by [the mandatory disclosure rules], upon a showing by the defense that the request is reasonable.”

Initially, we note that this argument was not made by defendant in his two discovery motions or at the hearing, it was not addressed or considered by the trial court, and it was not mentioned in the trial court’s order denying defendant’s motion.

Further, the trial court partially granted defendant’s motion, and on appeal defendant has not demonstrated how the additional burglary information would have affected the outcome of the trial. Therefore, after reviewing the entire record, we can say with fair assurance that any discovery error did not so undermine the fundamental fairness of the trial itself as to cast serious doubt on the reliability of his judgment of conviction. See Wilson v. People, 743 P.2d 415 (Colo.l987)(articulating standard for plain error review).

IV.Jurors’ Question During Deliberations

Defendant next contends that the trial court violated his constitutional rights to trial by jury and due process when it responded to a note from the jurors. We disagree.

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

Here, during deliberations, the jurors delivered a note to the court that read: “Need explanation of the charges and counts.” The trial court conferred with counsel about a response to this question and asked the parties if referring the jurors to Instruction No. 13, which described charges, counts, and offenses, was adequate. Defendant’s counsel stated that although he was confused by the jurors’ question, the court’s proposed answer might prompt a more specific question. The trial court concluded that unless counsel had another suggestion, it would refer the jurors to Instruction No. 13. Ultimately, defendant’s counsel stated that he had no objection to the proposed response.

Thus, defense counsel actively participated in preparing the response to the jurors’ question and defendant cannot now complain that the response was improper.

V.Jury Verdict Form

Defendant contends that the trial court violated his constitutional right to trial by jury because it refused to instruct the jurors to choose between different theories of murder. We are not persuaded.

Under the doctrine of invited error, a party may not complain on appeal of an error that he or she has invited or injected into the case; a party must abide the eonse-quénces of his or her acts. People v. Zapata, 779 P.2d 1307 (Colo.1989); People v. Gregor, 26 P.3d 530 (Colo.App.2000).

In accordance with defendant’s express request, the trial court submitted two jury verdict forms to the jurors, which allowed them to convict defendant of both first degree murder (felony murder) and second degree murder. Further, during the jury instruction conference, defendant’s counsel expressly objected to the prosecution’s proposed instruction requiring the jury to choose between the different theories of murder. The trial court rejected the proposed instruction based on defendant’s objection, but defendant now argues it should have been submitted to the jury.

Thus, defendant’s affirmative request and objection led to the error here. Accordingly, defendant is precluded from challenging the instructions now.

VI.Felony Murder Conviction

Defendant next contends that his acquittal on the charge of first degree murder (after deliberation) is legally inconsistent with his conviction of felony murder. Specifically, he argues that the acquittal is inconsistent with the doctrine of supplied deliberation on which the charge of felony murder is based. We disagree and conclude that defendant misapprehends the intent element of felony murder.

If the existence of an element of one crime negates the existence of a necessary element of another crime, guilty verdicts on both are legally and logically inconsistent and may not be sustained. People v. Frye, 898 P.2d 559 (Colo.1995); People v. Ramirez, 18 P.3d 822 (Colo.App.2000).

However, a defendant may be convicted of felony murder where the only showing of mental culpability is that for the underlying general intent felony. People v. Hickam, 684 P.2d 228, 232 (Colo.1984). In Hickam, the court expressly rejected the defendant’s argument that because felony murder is classified as first degree murder, the prosecution must be required to prove that he had the specific intent to kill. Rather, the element of causing a death during the commission of a felony supplies the mental culpability element required for first degree murder. People v. Hickam, supra. There is no requirement that the prosecution prove any specific intent to kill, whether after deliberation or not.

Therefore, defendant’s acquittal of first degree murder (after deliberation) is not relevant to the intent element of felony murder, which is supplied by his intent to commit second degree burglary. Thus, the verdicts are not inconsistent.

VII. Second Degree Murder and Second Degree Burglary Convictions

However, we agree with the People that defendant cannot be convicted of felony murder and second degree murder for the same killing.

Only one conviction of murder is permitted for the killing of one victim. People v. Lowe, 660 P.2d 1261 (Colo.1983), overruled in part by Callis v. People, 692 P.2d 1045 (Colo.1984). Therefore, here, only one conviction may enter for the homicide. See also People v. Hickam, supra (defendant cannot be convicted of felony murder and second degree murder for one killing).

In deciding which of two convictions to retain under these circumstances, a court should enter as many convictions and impose as many sentences as are legally possible so as to effectuate fully the jury’s verdict. People v. Glover, 893 P.2d 1311 (Colo.1995).

Here, because felony murder produces the longest sentence and results in a conviction of the felony of the higher class, we conclude that it maximizes the effect of the jury’s verdict. Accordingly, defendant’s conviction for second degree murder must be vacated.

Further, we agree with the People that defendant may not be convicted of both felony murder and second degree burglary because the burglary offense, as the predicate felony, is a lesser included offense of felony murder. See People v. Lucas, 992 P.2d 619 (Colo.App.1999)(noting when felony murder is predicated upon defendant’s killing of a robbery victim, a simultaneous conviction for robbery is precluded). Thus, his conviction for second degree burglary also must be vacated.

On remand, the trial court is instructed to correct the mittimus to reflect only a conviction of felony murder.

The judgment is vacated as to the convictions for second degree murder and second degree burglary, and the case is remanded for correction of the mittimus in accordance with this opinion. In all other respects, the judgment is affirmed.

Judge PLANK and Judge DAILEY concur.


source: Caselaw Access Project

author: Judge WEBB.

license: Public Domain

text:
    Lavonne BAZEMORE, Plaintiff-Appellant, v. COLORADO STATE LOTTERY DIVISION, an agency of the State of Colorado; Colorado State Lottery Commission, an agency of the State of Colorado; and Texaco, Inc., a Texas corporation, Defendants-Appellees.
    No. 01CA0380.
    Colorado Court of Appeals, Div. I.
    Aug. 1, 2002.
    Certiorari Denied March 10, 2003.

      The Carey Law Firm, Leif Garrison, Robert B. Carey, Colorado Springs, Colorado, for Plaintiff-Appellant.
    Ken Salazar, Attorney General, Maurice G. Knaizer, Deputy Attorney General, Denver, Colorado, for Defendants-Appellees Colorado State Lottery Division and Colorado State Lottery Commission.
    Holland & Hart, LLP, Todd W. Miller, Denver, Colorado, for Defendant-Appellee Texaco, Inc.
   Opinion by

Judge WEBB.

Plaintiff, Lavonne Bazemore, appeals the district court’s order dismissing her complaint against defendants, Colorado State Lottery Division and Colorado State Lottery Commission (collectively, Lottery) and Texaco, Inc., for lack of jurisdiction based on her failure to exhaust administrative remedies. We reverse and remand for further proceedings.

According to plaintiffs complaint, she bought tickets for various lottery instant scratch games, including some purchased from Texaco as a licensed lottery sales agent, but later she discovered that the grand prizes for these games had been awarded before she purchased these tickets. She alleged that although the Lottery knew the last grand prize for a particular scratch game had been claimed, the Lottery continued to sell tickets for that game, did not inform potential purchasers the grand prize was no longer available, and instead continued to represent the availability of the grand prize (“win up to ... ”)•

Plaintiff asserted claims for breach of express contract; breach of express and implied warranties under the Uniform Commercial Code; breach of implied covenant of good faith and fair dealing; violation of the lottery statute, § 24-35-201, et seq., C.R.S. 2001; deceptive trade practices; and unjust enrichment. She sought actual damages, including restitution of revenues from ticket sales after a represented prize was no longer available, as well as injunctive and declaratory relief.

In addition, plaintiff asked for certification of a plaintiff class and a class of defendant sales agents. The trial court did not rule on either aspect of class certification.

Following oral argument on defendants’ motions to dismiss, but without conducting an evidentiary hearing, the trial court ruled that adequate administrative remedies existed to address plaintiffs concerns, which it found plaintiff had failed to exhaust. The court further found that none of the exceptions to the exhaustion doctrine applied and therefore dismissed plaintiffs complaint for lack of subject matter jurisdiction.

I.

Plaintiff argues that because either no administrative remedy is provided or the administrative remedy, if any, is inadequate, she has no obligation to exhaust administrative remedies. We agree.

Motions to dismiss for lack of subject matter jurisdiction are governed by C.R.C.P. 12(b)(1). The plaintiff has the burden to prove jurisdiction. Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo.1993).

Appellate courts apply a mixed standard of review in such situations. City of Boulder v. Public Service Co., 996 P.2d 198 (Colo.App.1999). A trial court’s evidentiary findings are reviewed under the clear error standard. Smith v. Town of Estes Park, 944 P.2d 571 (Colo.App.1996). A trial court’s legal conclusions are reviewed de novo. Walton v. State, 968 P.2d 636 (Colo.1998).

The exhaustion of administrative remedies doctrine requires parties to pursue available statutory administrative remedies before filing suit in district court. In addition to conserving judicial resources, the doctrine enables the agency to make initial determinations and correct errors on matters within its expertise, while compiling a record that is adequate for judicial review. State v. Golden’s Concrete Co., 962 P.2d 919 (Colo.1998).

However, the obligation to exhaust remedies arises only if complete, adequate, and speedy remedies are available. City & County of Denver v. United Air Lines, Inc., 8 P.3d 1206 (Colo.2000).

A.

Determining whether complete, adequate, and speedy remedies are available requires examination of an agency’s governing statute, rules, and regulations in light of a plaintiffs complaint. Hence, this threshold issue presents a question of law that we review de novo.

Pursuant to article XVIII, section 2(7) of the Colorado Constitution, the General Assembly enacted the lottery statute, establishing the State Lottery Division to operate and supervise a statewide lottery. The Division includes both the Lottery Commission and the Lottery Director. Section 24-35-202(2), C.R.S.2001.

The Commission is authorized to promulgate rules and regulations governing the types of lotteries to be conducted, the number and sizes of prizes to be awarded, and the manner of selecting winning tickets or shares. Section 24-35-208, C.R.S.2001. The Commission is empowered, but not required, to conduct hearings on complaints charging violations of the lottery laws and rules or regulations promulgated thereunder and “such other hearings as may be provided by rules of the commission.” Section 24-35-208(l)(b), C.R.S.2001.

The lottery statute mandates a hearing only in connection with the grant, suspension, revocation, or renewal of sales agent licenses. Section 24-35-206(3), C.R.S.2001. It does not otherwise require exhaustion of administrative remedies.

We find no statutory provision, rule, or regulation that addresses the claims set forth in plaintiffs complaint, let alone provides complete, adequate, and speedy remedies. The only provision remotely applicable to these claims is a rule effective March 2, 2002, providing for a hearing to terminate controversies. See Lottery Commission Rule 16, 1 Code Colo. Regs. 206-1. However, we give no weight to a remedy created only after plaintiffs case had been dismissed.

B.

We disagree with the trial court’s conclusion that the “primary underlying basis of all of the Plaintiffs statutory and contractual claims is that the Lottery violated its own statute.” Only one of plaintiffs seven claims for relief alleges a statutory violation that might be the subject of a hearing under § 24-35-208(l)(b). Nothing in the lottery statute addresses plaintiffs basic complaint that the Lottery continued to sell tickets and represent the availability of a grand prize after it knew that the prize was no longer available.

Moreover, the extremely general language of the sections cited by the Lottery does not support its assertion that plaintiffs claims would, if true, constitute statutory violations. See § 24-35-204(3)(m), C.R.S.2001 (director is authorized to “take such action as may be necessary to protect the security and integrity of the lottery games”); § 24-35-204(3)(o), C.R.S.2001 (director determines matters “necessary or desirable for the efficient and economical operation and administration of the lottery”); § 24-35-206(1), C.R.S.2001 (licensing rules include “other matters necessary to protect the public interest and trust in the lottery”); § 24-35-206(2)(a)(IV), C.R.S.2001 (criteria for sales agent license revocation include character “no longer consistent with the protection of the public interest and trust in the lottery”); § 24-35-209(1), C.R.S.2001 (members of the Commission and lottery division employees must “insure the confidence of the people of the state in the integrity of the division, its employees, and the commission”).

Accordingly, we conclude that the gravamen of plaintiffs complaint does not fall within the ambit of the Commission’s discretionary power to conduct hearings into violations of the lottery statute, rules, or regulations.

C.

Even as to plaintiffs claim that alleges a violation of the lottery statute, no defined procedures exist for submission, evaluation, and resolution of complaints by ticket purchasers. In our view, mere possession of discretionary supervisory and investigatory power by Lottery officials does not constitute an adequate administrative remedy in the absence of a specified procedure to follow in the event of a grievance. See City & County of Denver v. United Air Lines, Inc., supra, 8 P.3d at 1214 (exhaustion required “when an agency directs a party to follow certain administrative procedures consistent with the agency’s governing statute or ordinance”); see also Common Cause v. Board of Supervisors, 49 Cal.3d 432, 261 Cal.Rptr. 574, 777 P.2d 610 (1989)(continuing supervisory or investigatory power does not afford adequate administrative remedy absent defined procedures).

Requiring exhaustion as to a grievance for which the lottery statute provides no procedures whatsoever' — no complaint form, no notice or hearing, and no proposed resolution— would place plaintiff in the untenable position of being denied a judicial remedy despite the absence of any clear administrative remedy. See Homeland Stores, Inc. v. Resolution Trust Corp., 17 F.3d 1269 (10th Cir.1994)(governing statute provided no administrative remedy for claims arising from RTC’s actions).

In addition, the lottery statute does not empower the Commission to award monetary relief. See McCarthy v. Madigan, 503 U.S. 140, 147, 112 S.Ct. 1081, 1088, 117 L.Ed.2d 291, 301 (1992)(“[A]n administrative remedy may be inadequate ‘because of some doubt as to whether the agency was empowered to grant effective relief.’ ”) (quoting Gibson v. Berryhill, 411 U.S. 564, 575 n. 14, 93 S.Ct. 1689, 1696, 36 L.Ed.2d 488, 498 (1973)); cf. Davison v. Board of County Commissioners, 41 Colo.App. 344, 347, 585 P.2d 315, 317 (1978)(“The remedies contained in these [tax] statutes are complete and adequate.”). See generally C. Koch, Jr., Administrative Law & Practice § 10.24 at 293 (Supp.1996).

Thus, we conclude that affording the Lottery an opportunity to hold a hearing on plaintiffs complaint for money damages would carry with it no assurance of complete or effective relief.

D.

The Lottery argues that plaintiffs claims are “complaints about the implementation of Lottery games” which could be resolved by the Commission under various lottery game rules, citing Lottery Commission Rules 5.12(a) (Number and Size of Prizes), 5.16 (Manner of Selecting Winning Tickets), and 5.14 (Termination Date and Claims Period). We are not persuaded.

Only one of plaintiffs claims asserts a violation of the lottery rules. This claim does not specify the rule allegedly violated.

The rules cited by the Lottery do not address either continuation or termination of a game based on unavailability of the represented grand prize. To the contrary, Rule 5.14 affords the Director unfettered discretion to set the termination date of a game.

Moreover, Lottery Commission Rule 5.8 obligates each ticket purchaser to comply with “all final decisions of the Director, and all instructions and directives established by the Director.” Even assuming that the Director were empowered to resolve disputes over winning tickets, plaintiff was not and could not have been a winner of the grand prize, nor does she claim to have won any prize.

E.

Nevertheless, the Lottery argues that adequate administrative remedies exist because plaintiff could have invoked the hearing process established by the State Administrative Procedure Act (APA), § 24-4-101, et seq., C.R.S.2001. While the Commission is an executive department agency and therefore subject to the APA under § 24-4-107, C.R.S. 2001, we do not agree that the APA provides an adequate remedy.

The Lottery’s argument conflates the preliminary question of a right to a hearing with the subsidiary question of procedures governing that hearing. The APA supplants other statutes by providing hearing procedures where “an opportunity for agency adjudicatory hearing is required under the state constitution or by this or any other statute.” Section 24-4-105(2)(a), C.R.S.2001 (emphasis supplied). We find no hearing requirement in the lottery statute concerning complaints such as plaintiffs against the Lottery.

The APA provides an independent right to a hearing in only two areas: rule making, § 24-4-103(4), C.R.S.2001; and licensure, § 24-4-104(6), (9), C.R.S.2001. Thus, as relevant here, the APA does not create any right to a hearing.

The Lottery’s reliance on Zamarripa v. Q & T Food Stores, Inc., 929 P.2d 1332 (Colo.1997), is misplaced. That case dealt with the license revocation hearing required by § 24-35-206(3), which incorporates “all requirements” of the APA.

Hence, the APA does not change our conclusion as to inadequacy of the administrative remedies.

F.

Finally, the Lottery contends, and the trial court determined, that exhaustion of administrative remedies should be required to create a fully developed factual record, which would both reflect the Lottery’s expertise and conserve judicial resources. We disagree.

Initially we note that where, as here, we have discerned the absence of even minimal administrative procedures, we cannot assume that the Lottery would develop an adequate factual record upon which reviewing courts could base their decisions.

Moreover, the trial court identified the basic factual issues as, “when the Plaintiff purchased her particular ticket or tickets, where she purchased said tickets, whether she read the language on the ticket prior to her purchase, when the last grand prize was won or claimed, and whether Plaintiff won any prizes other than the advertised grand prize.”

We perceive nothing in these issues that calls for the particular expertise of the Lottery. The Lottery agrees that its advertising and some game tickets include the phrase ‘Win up to [the grand prize amount].” In our view the Lottery has no expertise to decide whether this language potentially misleads consumers who purchase tickets after the grand prize has been claimed.

In light of our conclusion that adequate administrative remedies are lacking, exhaustion could not be required merely to conserve judicial resources. Regardless, we are not persuaded that resolving these factual issues would place any unusual burden on the trial court. In its answer brief, the Lottery admits that “[o]n occasion, an instant game remains available for sale even though the last top prize has been claimed.” Each of the other facts would be within plaintiffs knowledge or otherwise readily ascertainable.

Therefore, we conclude that the trial court erred in dismissing the case for lack of subject matter jurisdiction based on failure to exhaust administrative remedies.

II.

Plaintiff argues that she has pleaded claims against Texaco which are not subject to the exhaustion requirement. As a result of our ruling that exhaustion was not required, we need not address this contention.

III.

The trial court did not expressly rule on defendants’ argument that the Colorado Governmental Immunity Act, § 24-10-101, et seq., C.R.S.2001, bars plaintiffs claims. It offered several “observations,” including the belief that “[plaintiffs claims are, in fact, more in the nature of a tort.” In its answer brief the Lottery states, “This court does not have jurisdiction to review this issue because the trial court did not formally address it.”

We agree that the issue of governmental immunity may require factual determinations and that, hence, the trial court should first address this issue. We therefore conclude that the issue is not properly before us.

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

Chief Judge HUME and Judge CASEBOLT concur.


author: Judge ROY.

text:
    Dana P. HLAVAC, Petitioner, v. Donetta DAVIDSON, Secretary of State, in a Matter Before the Division of Administrative Hearings, Respondent-Appellee, and Frank E. Ruybalid, Respondent-Appellant.
    No. 01CA0381.
    Colorado Court of Appeals, Div. V.
    Aug. 29, 2002.

      Certiorari Denied March 17, 2003.

      No Appearance for Petitioner.
    Ken Salazar, Attorney General, M. Terry Fox, Assistant Attorney General, Denver, Colorado, for Respondent-Appellee.
    Frank E. Ruybalid, Pro Se.

       Justice COATS would grant as to the following issue:
      Whether expenditures from personal resources on a candidate's own campaign are implicitly or contextually included in the reporting requirements in the Colorado Fair Campaign Practices Act.

   Opinion by

Judge ROY.

Frank E. Ruybalid (candidate) appeals from an order of the administrative law judge (ALJ) concluding that he violated the reporting and disclosure requirements of the Fair Campaign Practices Act, § 1-45-101, et seq., C.R.S.2001 (the Act). We affirm.

Candidate and Dana P. Hlavac (opponent) both sought the 2000 Republican nomination for District Attorney for Colorado’s Third Judicial District. On July 24, 2000, opponent filed a complaint with the Secretary of State, alleging, inter alia, that candidate had violated the Act by failing to report his own and his campaign committee’s contributions and expenditures in May and June 2000.

The parties stipulated to the following facts. Candidate created the committee, made up of several persons, in February 2000, for the purpose of soliciting campaign donations, but did not file a certificate of organization for that committee as required by the Act until late July 2000. Between February and July the committee received campaign contributions which were not deposited in the committee’s bank account until July 5, 2000, the day the account was opened. The committee first expended funds from the account on July 15, 2000.

In the meantime, between February 23 and July 25, 2000, candidate spent approximately $4,000 of his personal funds on the campaign. On July 27, 2000, the committee filed with the Secretary of State the summary report of contributions and expenditures, which included candidate’s personal expenditures.

The ALJ appointed to hear the matter concluded that candidate violated the reporting and disclosure requirements of the Act by accepting contributions before registering a candidate committee with the Secretary of State and by failing to make timely reports of his personal expenditures. The ALJ imposed sanctions, and this appeal followed.

I.

Candidate contends that the ALJ erred by concluding he was required to report his expenditures from personal funds pursuant to § 1-45-108, C.R.S.2001. We disagree.

As pertinent here, § l-45-108(l)(a), C.R.S. 2001, provides, “All candidate committees ... shall report to the appropriate officer their contributions received, including the name and address of each person who has contributed twenty dollars or more; expenditures made; and obligations entered into by the committee or party.”

Section 1-45-103(2), C.R.S.2001, defines “Candidate Committee” as “a person, including the candidate, or persons with the common purpose of receiving contributions and making expenditures under the authority of a candidate ” (emphasis added).

It is apparent from the plain language of § 1-45-103(2) that a candidate committee may be comprised of one person only and that the candidate acting alone may be a candidate committee. Thus, a candidate who acts alone for the purpose of receiving campaign contributions or making campaign expenditures is a candidate committee subject to the disclosure requirements of the Act.

The Act also provides that a candidate shall have only one candidate committee. Section 1-45-103(2). An obvious purpose of this limitation is to require that all contributions received, expenditures made, and obligations incurred under the authority of the candidate be reported by one entity, the candidate committee.

Therefore, the expenditures made by candidate from his personal funds before certification of his committee were either contributions to the ultimately certified candidate committee or expenditures by a separate campaign committee composed of the candidate alone.

Further, under § l-45-108(l)(a), candidate committees must disclose all expenditures and obligations, even if no contributions are received. Thus, if a candidate runs without a separate committee and finances the campaign from personal funds, the candidate is a candidate committee under § 1-45-103(2) and must disclose expenditures and obligations as required by § l-45-108(l)(a). Contrary to candidate’s suggestion, nothing in § l-45-108(l)(a) indicates that expenditures must be reported only if drawn on outside contributions.

We also reject candidate’s argument that because he had a candidate committee, and a candidate may have only one candidate committee, it was legally impossible for him to be a candidate committee bound by the reporting requirements. Here, both candidate and the committee made expenditures under the authority of the candidate. Thus, both candidate and the committee were candidate committees or candidate was acting through the formed committee. In either instance, the expenditures were subject to the disclosure requirements of § l-45-108(l)(a).

II.

Candidate next contends that to hold that a “candidate committee” includes a candidate spending his or her personal money would result in an unconstitutional application of various provisions of the Act. He argues that a candidate would be limited in the amount he personally could spend on his or her own campaign in violation of the First Amendment. We disagree.

The seminal case in the area of campaign finance reform is Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). In Buckley, the Supreme Court held that contribution limits and disclosure provisions are constitutional because they serve the basic governmental interest in safeguarding the integrity of the electoral process without directly impinging on the rights of individual citizens and candidates to engage in political debate and discussion. The Supreme Court added, however, that limitations on a candidate’s expenditures from personal funds are unconstitutional violations of the First Amendment.

Section 1-45-105.3, C.R.S.2001, limits the amounts a natural person may contribute to a candidate committee. Candidate therefore argues that because a candidate is necessarily a natural person, but is also a candidate committee if he or she expends personal funds on the campaign, a candidate may not expend personal funds in excess of the contribution caps because to do so would be to make a contribution to a candidate committee in violation of the Act. Thus, candidate contends that our interpretation of “candidate committee” limits a candidate’s expenditures from personal funds in violation of the rule of Buckley v. Valeo, supra.

Candidate’s argument turns on the Act’s definition of contribution. Section 1-45-103(4)(a), C.R.S.2001, provides as pertinent here:

“Contribution” means:

(I) The payment, loan, pledge, or advance of money, or guarantee of a loan, made to any candidate committee ...
(II) Any payment made to a third party for the benefit of any candidate committee
(IV) Anything of value given, directly or indirectly, to a candidate for the purpose of promoting the candidate’s nomination, retention, recall, or election.

The statute does not specifically address whether a candidate’s personal expenditures are contributions. However, in light of Buckley v. Valeo, supra, we construe the limits of §§ 1-45-103 and 1-45-105.3 not to apply to a candidate’s expenditures of personal funds and contributions made by the candidate to his or her own candidate committee. See City & County of Denver v. Board of Assessment Appeals, 30 P.3d 177 (Colo.2001)(courts must construe a statute to be constitutional, if possible); see also Secretary of State Rules Concerning Pair Campaign Practices Act 24.6 (2000)(limits of § 1-45-105.3(1) do not apply to contributions that a candidate makes personally to his or her candidate committee). Accordingly, we reject candidate’s First Amendment argument.

III.

Candidate also contends that any requirement in the Act that a candidate disclose personal campaign expenditures is unconstitutionally vague. We disagree.

The primary sanction for a violation of the Act is criminal. A criminal statute is unconstitutional if it is so vague that it leaves the public uncertain as to what conduct it prohibits. People v. Holmes, 959 P.2d 406 (Colo.1998). Consequently, a criminal statute may violate the due process clauses of the Fifth and Fourteenth Amendments and article II, § 25 of the Colorado Constitution where it forbids or requires the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application. See City of Chicago v. Morales, 527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999); People v. Holmes, supra. Conversely, a statute satisfies the requirements of due process if it provides fair notice of the conduct that has been deemed unlawful. See Smith v. Charnes, 728 P.2d 1287 (Colo.1986).

A criminal statute need not contain precise definitions of every word or phrase constituting an element of the offense to be deemed fair notice. See People v. Schoondermark, 699 P.2d 411 (Colo.1985). Due process does not require “mathematical exactitude in legislative draftsmanship,” People ex rel. City of Arvada v. Nissen, 650 P.2d 547, 550 (Colo.1982), and a provision is not unconstitutionally vague simply because it could have been drafted with greater precision. See United States v. Powell, 423 U.S. 87, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975). However, a statute must be sufficiently specific to give fair warning of the proscribed conduct, and, at the same time, must remain sufficiently general to address the essential problem under varied circumstances. See, e.g., People v. Aalbu, 696 P.2d 796 (Colo.1985); People v. Sequin, 199 Colo. 381, 388, 609 P.2d 622, 627 (1980)(“The vagueness test is not an exercise in semantics to emasculate legislation; rather, it is a pragmatic test to ensure fairness.”).

Candidate concedes that § 1-45-108 provides clear notice of the reports required of a candidate committee. Rather, candidate argues that § 1-45-103(2) provides an unclear definition of “candidate committee,” and therefore the Act is unconstitutionally vague as to who must report. We are not persuaded.

We have already concluded that, according to the plain and unambiguous language of § 1^45-103(2), a candidate committee may be composed of one person only and that the person may be the candidate who then is subject to the Act’s disclosure requirements. We conclude the statutes provide sufficient notice to persons of ordinary intelligence that expenditures, regardless of the source of the funds, must be reported. Accordingly, the statute is not unconstitutionally vague.

Candidate also appears to suggest that the Act is unconstitutionally overbroad and inhibits basic First Amendment freedoms because it prohibits a candidate from spending personal funds on a campaign. To the contrary, we have already concluded that, construed to preserve its constitutionality, the Act does not inhibit a candidate’s expenditures of personal funds so long as those expenditures are made through a candidate committee and reported in accordance with the Act.

Accordingly, the order is affirmed.

Judge MARQUEZ and Judge NIETO concur.


text:
    COTTER CORPORATION, Plaintiff-Appellant, v. AMERICAN EMPIRE SURPLUS LINES INSURANCE COMPANY, Great American Insurance Company, American National Fire Insurance Company, American Employers’ Insurance Company, Lexington Insurance Company, Granite State Insurance Company, and First State Insurance Company, Defendants-Appellees.
    No. 01CA1791.
    Colorado Court of Appeals, Div. II.
    Aug. 29, 2002.
    Certiorari Granted March 3, 2003.

      Moye, Giles, O’Keefe, Vermeire & Gorrell, LLP, John L. Watson, Leonard H. MacPhee, Denver, Colorado, for Plaintiff-Appellant.
    Faegre & Benson, LLP, Robert L. Matthews, Boulder, Colorado; Lord, Bissell & Brook, A. Kelly Turner, Sarah H. Dearing, Chicago, Illinois, for DefendanL-Appellee American Empire Surplus Lines Insurance Company.
    MeGloin, Davenport, Severson and Snow, Michael M. MeGloin, Denver, Colorado, for Defendants-Appellees Great American Insurance Company and American National Fire Insurance Company.
    Markusson, Green & Jarvis, P.C., H. Keith Jarvis, Kirstin G. Lindberg, Denver, Colorado, for Defendant-Appellee American Employers’ Insurance Company.
    Wood, Ris & Hames, P.C., Clayton B. Russell, Denver, Colorado; Sinnott Dito Moura & Puebla, P.C., J. Karren Baker, San Francisco, California, for Defendants-Appellees Lexington Insurance Company and Granite State Insurance Company.
    Hogan & Hartson, L.L.P., Charles T. Mitchell, Denver, Colorado, George W. Mayo, Jr., Washington, D.C., for Defendant-Appel-lee First State Insurance Company.
    Powers Phillips, P.C., Joanne M. Zboyan, Denver, Colorado, for Amicus Curiae Complex Insurance Claims Litigation Association.

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

   Opinion by

Judge TAUBMAN.

In this declaratory judgment action, plaintiff, Cotter Corporation, appeals various summary judgments entered against it and in favor of defendants, seven insurance companies, on the basis that three different pollution exclusion clauses in their policies excluded coverage for claims brought by subdivision residents who allegedly were harmed by pollution from Cotter’s uranium mill. Because we conclude that the policies issued by the seven defendant insurance companies — American Empire Surplus Lines Insurance Company, Great American Insurance Company, American National Fire Insurance Company, American Employers’ Insurance Company, Lexington Insurance Company, Granite State Insurance Company, and First State Insurance Company- — did not require these insurers to provide coverage or a defense to Cotter, we affirm.

I. Background

The controversy here concerns Cotter’s operation of a uranium mill on a 1.4-square-mile site in Canon City, Colorado, from approximately 1958 until 1986. The site contains an inactive alkaline leach process mill, an old tailings pond disposal area, and a new tailings pond disposal area. Following the construction of the Cotter mill in 1957, the mill operators began extracting a crude uranium oxide known as “yellowcake” from uranium ore. After crushing and processing the uranium oxide, the yellowcake was transported to Illinois for use by Cotter’s parent company.

As part of the milling process, a large residue of liquid sludge, called tailings or raffinates, was piped into the tailing ponds. The tailings contained a small amount of residual uranium that had about eighty-five percent of the radioactivity of the original ore. The tailings also contained nonradioactive hazardous materials such as molybdenum, nickel, arsenic, and selenium.

In 1989, 532 residents of Lincoln Park, the Canon City subdivision near the Cotter mill, sued Cotter, its parent corporation, and others in federal district court in Colorado. Boughton v. Cotter Corp., No. 89-2-1505 (D. Colo, filed Sept. 1989). Plaintiffs alleged that material from Cotter’s uranium mill had seeped from the tailings ponds into their neighborhood, causing personal injury, property damage, and economic harm.

In 1991, another sixty-seven plaintiffs filed a similar action. Dodge v. Cotter Corp., No. 91-2-1861 (D. Colo, filed Oct. 24,1991).

Cotter gave timely notice of the Boughton and Dodge claims to its insurers, the defendants here, all of whom denied coverage and refused to defend or indemnify Cotter, based upon pollution exclusion clauses in their policies.

At issue here are the following policies: a Lexington commercial liability policy, effective August 1987 to August 1988; an American Empire policy, effective August 1995 to August 1996; seven policies issued by Great American and American National, effective June 1975 through August 1986; three American Employers’ primary policies, effective June 1971 through June 1974; an American Employers’ umbrella policy, effective October 1970 through January 1973; four Lexington excess insurance policies, effective January 1974 to June 1979; a Granite State excess policy, effective June 1982 to June 1983; and a First State excess umbrella policy, effective March 1977 to June 1978.

Following a bellwether trial in the Bough-ton case resulting in a judgment against Cotter for nearly $80,000, Cotter entered into a confidential settlement with the remaining Boughton plaintiffs. See In re Chevron U.S.A., Inc., 109 F.3d 1016, 1019-20 (5th Cir.1997)(bellwether trial addresses claims of some members of a large group to enhance the prospects of settlement and to resolve common issues). In Dodge, several trials resulted in jury verdicts against Cotter for more than $16 million, and with interest, the judgment exceeded $43 million. Cotter has appealed those judgments to the Tenth Circuit Court of Appeals, and those appeals are pending.

Seeking coverage for its liability in the Boughton and Dodge cases, Cotter then filed this declaratory judgment action. Between October 1998 and May 2001, the trial court granted summary judgments in favor of the insurers based upon qualified pollution exclusions in their policies. The trial court determined that because Cotter had expected and intended a discharge of pollutants from the tailings ponds during the policy periods, the exception to the qualified pollution exclusions did not require the insurers to provide coverage to Cotter. As relevant here, the trial court also concluded that two excess insurers, American Empire and First State, had no duty to defend Cotter.

The trial court granted Lexington’s summary judgment based upon an absolute pollution exclusion, because it was undisputed that Cotter had discharged contaminants into the land and atmosphere.

As discussed in more detail below, the qualified pollution exclusion is so named because it excludes from coverage all pollution-related injuries, but is limited or “qualified” by an exception that restores coverage for “sudden and accidental” events or “sudden, unintended and unexpected happening[s].” In contrast, those policies containing an absolute pollution exclusion do not contain such a limiting provision.

From these summary judgments, Cotter now appeals.

II. Standard of Review

We review a summary judgment de novo, applying the same standards that govern the trial court’s determination. Summary judgment is warranted only when there is a clear showing that no genuine issue exists as to any material fact and that the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(e); Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo.1988); Waskel v. Guar. Nat’l Corp., 23 P.3d 1214 (Colo.App.2000).

The moving party has the initial burden to show that there is no genuine issue of material fact. The burden then shifts to the nonmoving party to establish that there is a triable issue of fact. AviComm, Inc. v. Colo. Pub. Util. Comm’n, 955 P.2d 1023 (Colo.1998).

The nonmoving party is entitled to all favorable inferences that may be drawn from the undisputed facts, and all doubts as to whether a triable issue of fact exists must be resolved against the moving party. Compass Ins. Co. v. City of Littleton, 984 P.2d 606 (Colo.1999).

III. Qualified Pollution Exclusion Clauses

Cotter contends that the trial court improperly interpreted the qualified pollution exclusion clauses in the policies at issue. It further argues that under the correct interpretation, disputed issues of material fact prevent summary judgment. We disagree.

A. Contract Interpretation

At issue here is the interpretation of the various “sudden and accidental” and “sudden, unintended and unexpected” exceptions to the pollution exclusion clauses.

The pollution exclusion in the policies issued by Great American, Granite State, Lexington, and American Employers’ reads as follows:

This insurance does not apply:

to bodily injury or property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any water course or body of water; but this exclusion does not apply if such discharge, dispersal, release, or escape is sudden or accidental.

(Emphasis added.) American Empire’s pollution exclusion clause is identical, but applies only to bodily injury.

In contrast, First State’s pollution exclusion clause reads as follows:

The Insurance does not cover any liability for:
(1) Personal Injury or Bodily Injury or loss of or damage to or loss of use of property directly or indirectly caused by seepage, pollution, or contamination, provided always that this clause shall not apply to liability for Personal Injury or Bodily Injury or loss of or physical damage to or destruction of tangible property, or loss of use of such property damaged or destroyed, where such seepage, pollution or contamination is caused by a sudden, unintended and unexpected happening during the period of this insurance.

(Emphasis added.)

The crux of the dispute here is Cotter’s contention that the phrase “unexpected and unintended” refers to whether Cotter expected or intended to harm the environment offsite from the mill facility. In other words, Cotter argues that it must have expected or intended to harm the environment to trigger the pollution exclusion clause and that any de minimis discharge of contaminants should not be considered a “polluting event.” It thus defines “polluting event” as a discharge that is harmful to the environment. In contrast, the insurers argue that what must be “unexpected or unintended” is the discharge, dispersal, release, or escape of contaminants into the environment. We agree with the insurers.

The interpretation of an insurance contract and the determination whether that contract is ambiguous are questions of law that we review de novo. TerraMatrix, Inc. v. U.S. Fire Ins. Co., 939 P.2d 483, 486 (Colo.App.1997).

We will enforce a policy as written, unless there is an ambiguity in the policy language. State Farm Mut. Auto. Ins. Co. v. Stein, 940 P.2d 384, 387 (Colo.1997).

Thus, we may not look beyond the plain words of an insurance contract to interpret it based on the parties’ underlying intent unless the contract terms are ambiguous or are used in a special or technical sense not defined in the contract. TerraMatrix, Inc. v. U.S. Fire Ins. Co., supra.

A provision is ambiguous when it reasonably is susceptible of more than one meaning. The fact that the parties disagree about the meaning of a contractual provision does not establish ambiguity. TerraMatrix, Inc. v. U.S. Fire Ins. Co., supra.

An ambiguous contractual provision must be construed against the drafter and in favor of providing coverage to the insured. Compass Ins. Co. v. City of Littleton, supra, 984 P.2d at 613.

At the outset, we note that the supreme court, as well as courts in many other jurisdictions, have interpreted various words and phrases in pollution exclusion clauses similar to those at issue here.

As pertinent to our analysis, the supreme court interpreted a “sudden and accidental” pollution exclusion clause in Hecla Mining Co. v. New Hampshire Insurance Co., 811 P.2d 1083,1091 (Colo.1991). After a detailed analysis of the exclusion language and decisions from other jurisdictions, the court concluded that the phrase “sudden and accidental” was ambiguous and therefore had to be construed against the insurer to mean “unexpected and unintended.” Similarly, in Public Service Co. v. Wallis & Cos., 986 P.2d 924, 930-31 (Colo.1999), the supreme court held that the phrase “sudden, unintended, and unexpected” was ambiguous and must be construed as “unprepared for, unintended, and unexpected.”

That same year, in Compass Insurance Co. v. City of Littleton, supra, 984 P.2d at 610, the court addressed the phrase “discharge, dispersal, release or escape” to determine whether this language applied to the initial placement of contaminants in a landfill or the subsequent release of hazardous substances from the landfill into surrounding areas and groundwater. Persuaded by the analysis and conclusion of the Washington Supreme Court in Queen City Farms, Inc. v. Central National Insurance Co., 126 Wash.2d 50, 882 P.2d 703 (1994), the court held that the “relevant polluting event” for purposes of the pollution exclusion clause is the “release of pollutants from a containment area and not the initial placement of waste in that containment area.” Compass Ins. Co. v. City of Littleton, supra, 984 P.2d at 617 (emphasis added).

Here, the relevant language of the more common qualified pollution exclusion clause is as follows: “[T]his exclusion does not apply if such discharge, dispersal, release, or escape is sudden or accidental.” As we read the plain language of the phrase, the relevant inquiry is whether the discharge, dispersal, release or escape was expected and intended, as opposed to whether the insured expected or intended to harm the environment. See Compass Ins. Co. v. City of Littleton, supra; Hecla Mining Co. v. New Hampshire Insurance Co., supra. If the discharge, dispersal, release, or escape was unexpected.and unintended, insurance coverage is restored. If not, the exclusion operates to remove coverage.

Similarly, under the First State policy, if seepage, pollution, or contamination is caused by a “sudden, unintended and unexpected happening,” then coverage is restored. Otherwise, there is no coverage. See Pub. Serv. Co. v. Wallis & Cos., supra.

Contrary to Cotter’s contention, the pollution exclusion clauses do not require that the insured expect and intend that the discharge harm the environment. Thus, we disagree that the relevant polluting event is a discharge of contaminants that Cotter expected or intended to harm the environment. Rather, as we read Compass, the relevant polluting event is the intended or expected release of contaminants from a containment area.

Our interpretation is supported by the decision in Queen City: “We therefore hold that the relevant polluting event is the discharge, dispersal, release, or escape of toxic material into the environment,” and “the discharge, dispersal, release, or escape must be sudden and accidental” for coverage to apply. Queen City Farms, Inc. v. Cent. Nat’l Ins. Co., supra, 882 P.2d at 719-20. The Queen City court further held, “If the polluting event is expected or intended, then coverage is excluded under the qualified pollution exclusion.” Queen City Farms, Inc. v. Cent. Nat’l Ins. Co., supra, 882 P.2d at 725; see also Hecla Mining Co. v. New Hampshire Ins. Co., supra, 811 P.2d at 1088 n. 7 (“the pollution exclusion clause focuses on whether the discharge of pollution was unexpected or unintended”).

However, relying on language from Queen City and Textron, Inc. v. Aetna Casualty & Surety Co., 754 A.2d 742 (R.I.2000), Cotter argues that the pollution exclusion clause protects a polluter like itself who made good faith efforts using state-of-the-art technology to control pollution, but does not shelter an active or reckless polluter. However, Queen City and Textron describe polar opposites— the deliberate, reckless, and intentional polluter, for whom no coverage should be afforded, and the polluter who takes great care to arrange for the proper disposal of hazardous wastes, for whom coverage should be provided under the exception to the pollution exclusion clause. Here, in contrast, Cotter may not have intended to harm the environment, but nevertheless intended or expected that contaminants would be released into the environment.

Cotter further urges us to rely on language in Queen City, supra, 882 P.2d at 719, that concerns a polluter who deposited toxic material in a place that it believed would contain or safely filter the material. We conclude that Queen City is factually distinguishable, and in any event the Queen City court rejected such an argument, as have we: “Because the focus of the exclusion is on the polluting event [the discharge], and not the damages, we conclude the construction offered by [plaintiffs] ... is not reasonable insofar as it focuses only on damage resulting from the polluting event.” Queen City Farms, Inc. v. Cent. Nat’l Ins. Co., supra, 882 P.2d at 724. Thus, we reject Cotter’s interpretation of Queen City.

Similarly, Cotter relies on Textron, Inc., supra, to support its contention that an insured who makes a good faith effort to contain and neutralize waste is not precluded from coverage under a pollution exclusion clause. However, the holding there is limited to the interpretation of the term “sudden and accidental” in the pollution exclusion clause. Thus, the reference to “intentional and reckless polluters” is dictum.

Further, we determine that Cotter’s extensive reference to the history of the pollution exclusion clause is unhelpful, because the supreme court has already interpreted the qualified pollution clauses at issue. See Pub. Serv. Co. v. Wallis & Cos., supra; Hecla Mining Co. v. New Hampshire Ins. Co., supra.

B. Issues of Fact

Cotter next contends that even under the interpretation of the pollution exclusion clause we adopt here, the insurers failed to meet their burden of establishing that there were no issues of material fact. We disagree.

First, we note that in its opening brief, Cotter states, “Cotter understood some migration of contaminants would occur from its old tailings pond, but it did not expect to pollute.” Given our interpretation of the exclusion, we could affirm the trial court’s summary judgments on this basis alone. Clearly, if Cotter understood that some contaminants would migrate from the tailings pond, it expected their discharge, dispersal, release, or escape.

Second, in response to a request to admit that by 1974 it had reason to believe that contaminants from the mill had migrated off-site, Cotter also stated, “Cotter admits that the very nature of the uranium milling process contemplates migration of certain contaminants off-site from the mill which is the basis for regulatory monitoring requirements imposed by governmental agencies.... ”

Third, the summary judgment motion included as an attachment the following testimony of a Cotter expert witness during the Boughton trial: “Contamination in Lincoln Park stems from seepage of the old [tailings] ponds. The seepage that existed that went on in the 1960’s and 70’s was not a function of the geology. It was a function of the fact that ponds were designed to seep, and that’s what happened.” This testimony clearly describes the antithesis of an unintended discharge, dispersal, release, or escape.

Finally, the insurers presented a series of communications from the Colorado Department of Health between 1968 and 1977 that notified Cotter of visible seepage from its tailings ponds and the contamination of off-site waters, such as Sand Creek. In addition, the insurers presented a report prepared by a hydrology consulting company for Cotter that addressed the seepage of raffi-nates out of the holdings ponds and the contamination of downstream waters. Also, the insurers submitted a proposed update, dated August 1983, to the national priorities list site under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9601, et seq. (2001), documenting groundwater contamination from the discharge of radionuclides and heavy metals from the unlined tailings ponds at the Cotter mill site. These exhibits demonstrate that, at a minimum, after the first notice of seepage and contamination in 1968, Cotter expected the discharge dispersal, release, or escape of contaminants from its tailings ponds into the environment.

In response, Cotter submitted exhibits that tended to show it did not intend to pollute or cause harm to the environment. However, Cotter submitted no exhibits to rebut the insurers’ exhibits demonstrating that it intended and expected contaminants to leach from the tailings ponds.

Cotter argues that even if some pollutants were discharged from its tailings ponds, it did not intend that the contaminants leach offsite and thus the pollution exclusion clause does not apply. We are not persuaded. Nothing in the plain language of the pollution exclusion clause requires that the discharge, dispersal, release, or escape of contaminants be limited to Cotter’s onsite facility.

We therefore conclude that Cotter did not meet its burden of establishing that there were triable issues of fact. Thus, the trial court properly granted the insurers’ motions for summary judgment.

IV. Duty to Defend of Excess Carriers

Cotter next contends that the trial court erred in granting summary judgment to American Empire and First State, because genuine issues of material fact exist as to these excess carriers’ duty to defend. We disagree.

At the outset, we note that Cotter sets forth no material facts in dispute and essentially argues that the trial court erred as a matter of law. Accordingly, we review de novo the trial court’s conclusions that neither carrier had a duty to defend Cotter. See Churchey v. Adolph Coors Co., supra.

The American Empire policy at issue here was in excess of a primary policy issued by Great American. The First State policy was in excess of a primary policy issued by Great American and a first excess policy issued by Lexington.

Both policies were indemnity policies and expressly disclaimed any duty to defend. American Empire’s disclaimer provided in pertinent part: “The Company shall not, however, be called upon to assume charge of the settlement or defense of any claim made, or suits brought, or proceedings instituted against the Insured.” The First State policy contains substantially similar’ language.

In Bertagnolli v. Ass’n of Trial Lawyers Assurance, 934 P.2d 916, 918 (Colo.App.1997), a division of this court interpreted a similar indemnity policy, concluding that “[b]y its plain terms, the policy does not impose on insurer a duty to defend; to the contrary, it specifically states that insurer has no such obligation.” The trial court here properly relied on Bertagnolli in concluding that the policies in question did not impose upon American Empire or First State a duty to defend Cotter.

Nonetheless, relying on Allstate Insurance Co. v. Frank B. Hall & Co., 770 P.2d 1342 (Colo.App.1989), Cotter argues that this situation is analogous to an “other insurance” clause which shifts some or all of the burden of the loss covered by a policy to other policies that also cover the same risk. Frank B. Hall is clearly distinguishable because here, the excess policies covered a risk different from that of the primary policies: They imposed only a duty to indemnify, whereas the primary policies also imposed a duty to defend.

Further, this is not a situation where two primary policies each attempt to be excess of the other, with the result that neither would apply. Cf. Pub. Serv. Co. v. Wallis & Cos., supra.

We also reject Cotter’s contention that American Empire and First State are independently liable for defense costs under a theory of equitable subrogation. Relying on Millers’ Mutual Insurance Ass’n v. Iowa National Mutual Insurance Co., 618 F.Supp. 301 (D.Colo.1985), Cotter maintains that when all obligated insurers have refused to defend, they should share in the cost of defense under equitable principles. Millers’ Mutual is inapposite, however, because there both insurers’ policies expressly provided a duty to defend, but here American Empire and First State had no duty to defend.

In light of our conclusion, we need not address Cotter’s contention that issues of fact remain as to whether the primary policies will be exhausted.

V. Absolute Pollution Exclusion Clause

Finally, Cotter contends that the trial court erred in finding that the absolute pollution exclusion clause in Lexington’s policy was clear, unambiguous, and enforceable. Again, we disagree.

The Lexington commercial liability policy for August 1987 to August 1988 contained an absolute exclusion clause as follows:

“Bodily Injury,” “Personal Injury” and/or “Property Damage” (including loss of use thereof) caused by, contributed to or arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalines, toxic chemicals, liquids or gases, waste materials or other irritants, pollutants or contaminants into or upon land, the atmosphere or any course or body of water, whether above or below ground.
It is understood and agreed that the intent and effect of this exclusion is to delete from any and all coverages afforded by this policy any claim, action, judgment, liability, settlement, defense or expense in any way arising out of such discharge, dispersal, release or escape whether such results from the Insured’s activities or the activities of others and whether or not such is sudden or gradual, and whether or not such is accidental, intended, foreseeable, expected, fortuitous or inevitable, and wherever such occurs.

According to Cotter, this language renders the pollution exclusion clause so broad as to be meaningless. In a related argument, Cotter asserts that the absolute pollution exclusion clause is ambiguous. We do not agree.

In TerraMatrix, Inc. v. United States Fire Insurance Co., supra, a division of this court interpreting a similar absolute pollution exclusion clause recognized that some courts have held such clauses unambiguous under all circumstances, while others have considered whether the clause was ambiguous when applied to the facts and circumstances of a particular case. Adopting the latter approach, the division in TerraMatrix held that under the factual circumstances before it, the policy at issue precluded coverage for damages caused by ammonia vapors that were produced as a byproduct of the insured’s printer and were not vented properly. As the trial court here concluded, “The TerraMatrix court held that the exclusion unambiguously excluded coverage for pollution[-]caused damage and therefore, the insurance company had no duty to defend or indemnify insured for the claim.”

Relying on TerraMatrix, Cotter maintains that the Lexington policy here is ambiguous because its literal language precluded coverage for virtually all of Cotter’s potential liability.

However, while Lexington and Cotter could have negotiated a policy that more precisely identified materials produced by Cotter that Lexington intended to exclude from coverage, they did not do so. There is nothing inherently ambiguous or unclear about the language of the absolute pollution exclusion at issue. There is no dispute that Cotter’s activities included the “discharge, dispersal, release or escape” of “irritants, pollutants or contaminants” into or upon land or water. Thus, under the particular facts and circumstances here, the clause unambiguously excluded coverage. As the trial court concluded, “the exclusion clause is clearly intended to be an absolute bar to coverage for any form of pollution.”

In so holding, we recognize, as Cotter asserts, that some courts have concluded that any absolute exclusion clause cannot be read literally because such interpretation would negate virtually all coverage. See, e.g., American States Ins. Co. v. Kiger, 662 N.E.2d 945 (Ind.1996). Nevertheless, the overwhelming majority of courts addressing the issue have found that the absolute pollution exclusion unambiguously bars coverage for claims arising out of exposure to irritants, pollutants, or contaminants, as is the case here. See, e.g., Technical Coating Applicators, Inc. v. U.S. Fid. & Guar. Co., 157 F.3d 843 (11th Cir.1998); Alcolac, Inc. v. Cal. Union Ins. Co., 716 F.Supp. 1546 (D.Md.1989); Truitt Oil & Gas Co. v. Ranger Ins. Co., 231 Ga.App. 89, 498 S.E.2d 572 (1998); Town of Harrison v. Nat’l Union Fire Ins. Co., 89 N.Y.2d 308, 653 N.Y.S.2d 75, 675 N.E.2d 829 (1996); Nat’l Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517 (Tex.1995)(collecting cases).

Further, contrary to Cotter’s contention, our interpretation does not nullify the essential coverage provided by the Lexington policy for a wide variety of accidents or mishaps. See Technical Coating Applicators, Inc. v. U.S. Fid. & Guar. Co., supra.

Accordingly, we conclude that the trial court properly determined that the Lexington policy containing the absolute exclusion clause did not afford coverage to Cotter.

The judgment is affirmed.

DAILEY and PIERCE , JJ., concur.