author: JUDGE VOGT.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Romel A. TRUSTY, Defendant-Appellant.
    No. 00CA0470.
    Colorado Court of Appeals, Div. V.
    Nov. 8, 2001.
    Rehearing Denied Dec. 27, 2001.

      Ken Salazar, Attorney General, Cheryl Hone, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Karen N. Taylor, Deputy State Public Defender, Denver, CO, for Defendant-Appellant.
   Opinion by

JUDGE VOGT.

Defendant, Romel A. Trusty, appeals the judgment of conviction entered on a jury verdict finding him guilty of possession of a schedule II controlled substance with intent to distribute. He also appeals his adjudication and sentence as a special offender,. We affirm in part, reverse in part, and remand.

Defendant was arrested in his aunt's apartment in a public housing complex. Police officers entered the apartment with a key given to them by the manager of the complex after they had been advised that there might be unauthorized persons in the apartment. They discovered defendant in a shower and another man, J.H., in a bedroom. After initially arresting defendant for trespass, the police found crack cocaine in the pocket of his pants. Elsewhere in the apartment they found his pager and his wallet containing over $600 in cash.

Defendant was convicted of possession with intent to distribute. He was also adjudicated a special offender on a finding by the jury that the offense occurred within a public housing development.

I.

Defendant contends that the trial court erred in refusing to suppress the cocaine, wallet, and pager seized by the police when they arrested him in his aunt's apartment. He asserts that the evidence should have been suppressed because: (1) his aunt did not consent to the officers' entry into her apartment; (2) the police lacked probable cause to arrest him for trespassing; and (8) the search of his pants exceeded the scope of a permissible pat-down search for officer safety purposes. We are not persuaded.

In reviewing a trial court's denial of a motion to suppress, we defer to that court's factual findings and reverse only where its conclusions are unsupported by its evidentia-ry findings or where it applied an erroneous legal standard. Petersen v. People, 939 P.2d 824 (Colo.1997).

A.

Federal and state constitutional provisions protecting against unreasonable searches generally prohibit a warrantless entry into a person's home, whether to make an arrest or to search for specific objects. However, 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 premises. People v. McKinstrey, 852 P.2d 467 (Colo.1998).

Whether consent was freely and voluntarily given is a question of fact to be determined in light of the totality of the cireumstances. People v. Herrera, 985 P.2d 956 (Colo.1997).

Where a warrantless entry is based on third-party consent, the determination of consent to enter must "be judged against an objective standard: would the facts available to the officer at the moment ... 'warrant a man of reasonable caution in the belief that the consenting party had authority over the premises?" People v. McKinstrey, supra, 852 P.2d at 472 (quoting Illinois v. Rodrigues, 497 U.S. 177, 188, 110 S.Ct. 2793, 2801, 111 L.Ed.2d 148, 161 (1990).

Here, the evidence supports the trial court's finding that the police entered the apartment with the consent of defendant's aunt and of the on-site property manager, who had authority to consent to their entry.

Although defendant's aunt denied having ' given her consent, she admitted at the suppression hearing that she had asked the police and the manager to watch her apartment while she served a ninety-day jail term, because she was concerned that another nephew, J.J., was selling drugs from the apartment. Further, the property manager testified that the aunt had asked her to "keep an eye" on the apartment in the aunt's absence and, if any unauthorized person was in the apartment, to call the police. When the property manager saw people going in and out of the apartment while the aunt was in jail, she contacted the police, asked them to check the apartment for unauthorized persons, and gave them a key to enable them to do so.

Under the totality of the cireumstances, the police officers had an objectively reasonable basis for believing that they were authorized by both the aunt and the property manager to enter the apartment.

B.

We also disagree with defendant's contention that the police lacked probable cause to arrest him when they encountered him in the shower.

To be valid, a warrantless arrest must be supported by probable cause. Probable cause to arrest exists when facts and cireumstances within the arresting officer's knowledge are sufficient to support a reasonable belief that a crime has been or is being committed by the person arrested. In determining whether there was probable cause to arrest, the totality of the circumstances known to the officer at the time of arrest must be considered. Because probable cause deals with probabilities and not certainties, it is sufficient if the officer reasonably believed that the person arrested committed a crime. People v. Cappelli, 927 P.2d 832 (Colo.1996).

According to the testimony at the suppression hearing, the police understood that no one was allowed to be in the apartment and that, if someone was found, the tenant had directed them to arrest that person for trespassing. When they arrived at the apartment, they knocked at the door and identified themselves as police. Although they heard movement inside the apartment, no one came to the door. They therefore entered using the key given to them by the property manager and found defendant and another man in the apartment.

These cireumstances were sufficient to support a reasonable belief by the officers that the men whom they encountered were trespassing. See People v. Cappelli, supra.

The cireumstances also distinguish this case from People v. Grazier, 992 P.2d 1149 (Colo.2000), on which defendant relies. In Grazier, the basis for the police officers' belief that a burglary was in progress had disappeared-in part, because they were voluntarily admitted into the apartment in response to their knock-by the time they arrested the defendant in the shower. Here, the fact that people were in the apartment but not answering the door gave the police an additional basis for believing that the occupants were trespassers.

C.

The record also supports the trial court's determination that the cocaine was discovered in plain view while the police officer was conducting a proper pat-down search of defendant's pants for officer safety purposes.

Under Terry v. Ohio, 892 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), police may conduct a pat-down weapons search if specific, articulable facts, taken together with inferences that may be drawn from those facts, give rise to a reasonable suspicion that the individual is, was, or is about to be engaged in criminal activity,. This standard applies even where the search takes place in a home. See People v. Mascarenas, 972 P.2d 717 (Colo.App.1998).

Under the plain view doctrine, a police officer may seize a plainly visible object inadvertently encountered in the course of a lawful pat-down search if the officer has reasonable grounds to believe the object is incriminating. The latter requirement is satisfied if the incriminating nature of the evidence is immediately apparent to the searching officer. See People v. Dumas, 955 P.2d 60 (Colo.1998); People v. Mascarenas, supra.

When the police found defendant in the shower, defendant asked them if he could get dressed and pointed to a bedroom where his clothing could be found. An officer went to the bedroom, saw a pair of pants that appeared large enough to fit defendant, picked up the pants, and felt them for weapons. The officer testified at the suppression hearing that, in the course of the weapons search, he could see into the pants pocket and saw in it two bags of what he suspected to be crack cocaine.

After the discovery of the cocaine, as the police and defendant were leaving, defendant asked the officers to get his wallet and his pager, which were in another room of the apartment.

On these facts, the trial court did not err in ruling that the cocaine, the wallet, and the pager were not the products of an illegal search and in declining to suppress the evidence.

II.

Defendant next contends that the trial court abused its discretion by excluding evidence of the criminal history and reputation of two alternative suspects. We disagree.

Trial courts have broad discretion in deciding the admissibility of evidence based on its relevancy, its probative value, and its prejudicial impact. Absent an abuse of discretion, a trial court's evidentiary rulings will not be disturbed on review. To constitute an abuse of discretion, exclusion of the evidence must have been manifestly arbitrary, unreasonable, or unfair. People v. Ibarra, 849 P.2d 33 (Colo.1998).

A defendant may prove his or her innocence by establishing the guilt of another person, including by proof of similar offenses committed by that person. People v. Flowers 644 P2d 916 (Colo.1982); People v. Ornelas, 987 P.2d 867 (Colo.

Whether to admit such similar offense evidence offered by a defendant is determined on a case-by-case basis. In order for evidence of a crime committed by an alternative suspect to be admissible, the circumstances of both erimes, taken together, must be sufficiently similar to support a finding that the same person was probably involved in both. People v. Perez, 972 P.2d 1072 (Colo.App.1998).

The mere fact of an alternative suspect's conviction, standing alone, is insufficient to render the evidence admissible. Rather, if the details of the crimes are not distinctive or unusual enough to represent a "signature" of a single individual, and thus do not support a finding that the same individual was involved in all the transactions, a trial court does not abuse its discretion in refusing to admit the evidence. See People v. Perez, supra (no abuse of discretion in excluding evidence of alternative suspect's misdemean- or sexual assault conviction where defendant presented no evidence indicating any distinctive similarities between that crime and sexual assault erime with which he was charged); People v. Ornelas, supra (upholding exclusion of evidence that defendant's house guests had previously been convicted of drug-related offenses where defendant failed to demonstrate that details of those offenses were similar to details of offense with which he was charged).

In this case, defendant was allowed to introduce evidence and to argue that the cocaine might have belonged to one of two other persons. The jury heard testimony that J.H. was in the apartment when the police arrived but did not open the door, and that he had been identified by defendant as the person who had gotten the cocaine from a dealer across the street. It also heard that the bedroom in which the drugs were found was that of J.J., another nephew of defendant's aunt, who had been kicked out of the apartment because gang members had been coming into his room, staying briefly, and then leaving. Defendant's aunt testified that J.J. wore baggy pants similar to those in which the cocaine was found.

The only evidence relating to these alternate suspects that the trial court exelud-ed was evidence of their criminal histories and reputations. The court did not allow defendant to introduce evidence of J.J.'s reputation and character, or evidence that the reason his aunt had made him leave was that he was dealing drugs. It also did not allow defendant to introduce evidence that J.H. was a crack cocaine dealer with prior felony convictions for possession of crack cocaine and that he was arrested on a felony warrant on the night of defendant's arrest.

Because defendant proffered no evidence indicating any distinetive or unusual similarities between the offense with which he was charged and the prior offenses of J.H. and J.J., we cannot say that the trial court's decision to exclude evidence of their criminal histories amounted to an abuse of discretion.

Further, even if evidence of J.J.'s prior activities at the apartment were deemed relevant under the standards set forth above, it would have been within the trial court's discretion to exclude that evidence under CRE 403 on the basis that its probative value, considered in light of the alternative suspect evidence already admitted, was substantially outweighed by the countervailing considerations set forth in that rule. See People v. Flowers, supra.

III.

Defendant contends that his conviction and sentence for a class three felony must be vacated because possession with intent to distribute a schedule II controlled substance is a class four felony under § 18-18-405(2)(a)(I), C.R.98.2001. A division of this court rejected that argument in People v. Pierrie, 30 P.B3d 816 (Colo.App.2001). We agree with the analysis and the result in Pierrie and conclude that it is dispositive of this issue.

IV.

Finally, defendant argues that his adjudication and sentence as a special offender must be reversed because the jury was not instructed to find, and the prosecution did not prove, that he intended to distribute crack cocaine to anyone within or on the grounds of the public housing development. We conclude that § 18-18-407(2)(a), C.R.S. 2001, the statute on which defendant's special offender conviction was based, requires such a showing, and thus we agree that the special offender conviction and sentence cannot stand.

Section 18-18-407(2)(a) states:

A defendant shall be a special offender if the defendant is convicted of selling, distributing, or possessing with intent to distribute any controlled substance in violation of section 18-18-405 to any person either within or upon the grounds of any . school, or public housing development, or within one thousand feet of the perimeter of any such school or public housing development grounds....

A.

In construing a statute, a court's primary task is to ascertain and give effect to the intent of the General Assembly. To do so, the court must first look to the language of the statute itself, giving the words their commonly accepted meaning and avoiding a strained or forced interpretation. When the language of the statute is clear, so that the legislative intent can be discerned with reasonable certainty, there is no need to resort to other rules of statutory construction. See State v. Nieto, 993 P.2d 493 (Colo.2000); People v. Shipley, 22 P.3d 564 (Colo.App.2001)(cert. granted May 14, 2001).

If the General Assembly's intended meaning of a phrase is doubtful, the court should consider the language in the context ofethe statute and by reference to the meaning of words or phrases associated with the phrase at issue. Fogg v. Macaluso, 892 P.2d 271 (Colo.1995); Sandoval v. Archdiocese of Denver, 8 P.3d 598 (Colo.App.2000).

When the statutory language is susceptible of more than one reasonable interpretation, leading to different results, the statute is ambiguous. In that event, a court must look beyond the language and consider other factors, such as the statute's legislative history and the objective sought to be achieved by the legislation. See State v. Nieto, supra; see also § 2-4-208(1), C.R.S. 2001.

If, after the court has employed the various aids to statutory construction, it is still unable to discern controlling legislative intent, the rule of lenity requires that the statute be construed favorably to the accused. People v. Pierrie, supra.

B.

1.

Applying these principles to the issue before us, we first consider the language of § 18-18-407(2)(a).

Defendant contends that the plain language of § 18-18-407(2)(a) requires a showing that the accused intended to distribute the controlled substance to a person in or on the grounds of the school or public housing development. The People respond that defendant's construction of § 18-18-407(2)(a) would "defeat the law's grammatical structure"; that the identity, status, or location of an intended buyer is irrelevant under the clear language of the statute; and that it need only be shown that, while within or on the grounds of a school or public housing development, the accused possessed a controlled substance with the intent to distribute it to any person.

We conclude that the statute is reasonably susceptible of either interpretation.

If we focus solely on the statutory language, the meaning of the statute turns on whether-as the People contend-the phrase "to any person" is to be read in isolation as the indirect object of "distribute," or whether-as defendant contends-"to any person" is not to be read in isolation but as limited or qualified by the geographic reference that immediately follows it ("within or upon the grounds of any ... public housing development").

Contrary to the People's contention, defendant's reading of the statute does not defeat its grammatical structure. Rather, it is consistent with the principle that the meaning of a word or phrase may be ascertained by reference to the meaning of other words or phrases associated with it, see Sandoval v. Archdiocese of Denver, supra; see generally 2A N. Singer, Statutes and Statutory Construction § 47:16 (6th ed.2000), and accords with the requirement that consistent effect be given to all parts of a statute. See People v. One 1967 Ford Mustang Convertible, 781 P.2d 186 (Colo.App.1989).

Section 18-18-407(2)(a) provides enhanced penalties for three separate drug offenses committed on or near the grounds of schools or public housing developments. For purposes of the first two offenses-selling or distributing controlled substances-the indirect object phrase ("to any person") is necessarily qualified by the geographic reference that follows. Selling or distributing "to any person," alone, does not bring the offender within the statute; rather, it must be shown that the offender was selling or distributing "to any person either within or upon the grounds of any ... school, or public housing development" or within one thousand feet of their perimeter.

To give consistent effect to the "to any person" phrase when it is used as the indirect object of the third offense-"possessing with intent to distribute"-the phrase likewise should be read as qualified by the geographic reference that follows, not read in isolation from that reference.

Although the grammatical structure of the statute thus appears to support defendant's reading of it, the People find support for their interpretation of the statute in cases from other jurisdictions that have concluded that, under their "schoolyard statutes"-that is, statutes enhancing penalties for drug offenses committed within or near schools-the location of the intended buyer of the drugs is irrelevant when the conviction is for possession with intent to distribute.

We conclude that these cases are of limited usefulness here, given the dissimilarities in the wording of the various statutes. We note, however, that courts construing the federal schoolyard statute, 21 U.S.C. $ 860, have reached divergent conclusions. Analyzing the federal cases, one commentator has observed that the courts have been more likely to uphold enhanced punishment where the defendant convicted of possession with intent to distribute was a "permanent resident," involved in prolonged, established, and substantial drug-related activities within the school zone. Conversely, courts have interpreted the schoolyard statute narrowly where, as here, the defendant was a "transient" offender, whose drug activities near schools were for short periods of time and involved a less established connection to the school zone. See Sonja R. West, Comment, "Possessing with Intent to Distribute" Under the Schoolyard Statute, 64 U. Chi. L.Rev. 1399 (Fall 1997).

In sum, we are not able to discern the intent of the General Assembly with reasonable certainty from the statutory language, and we conclude that other courts' interpretations of their statutes provide little if any guidance on this issue. Because the language of § 18-18-407(2)(a) is reasonably susceptible of both defendant's interpretation and the People's interpretation, it is ambiguous, and we must look to factors beyond the statutory language to determine its meaning.

2.

We next consider the legislative history of § 18-18407(2)(a) to determine whether it supports either party's proposed construction of the statute.

The Uniform Controlled Substances Act of 1992 included two sections providing for enhanced penalties for drug use or drug transactions in school zones. See Colo. Sess. Laws 1992 ch. 71, § 18-18-407(2)(a) at 8363 ("Upon a conviction for a violation of section 18-18-404 or 18-18-405, if the defendant unlawfully used any controlled substance in violation of section 18-18-404 or sold or distributed any controlled substance in violation of section 18-18-405 either within or upon the grounds of any ... school ... the defendant shall be a special offender") and § 18-18-405(4)(a) at 357 (providing enhanced penalty for "knowingly dispensing, selling, distributing, or possessing with intent to dispense, sell, or distribute a controlled substance to a person under the age of eighteen years either within or upon the grounds of any ... school").

In 1998, the General Assembly amended § 18-18-407(@2)(a) to add the phrase "or public housing development" to the schools included in the prior version of the statute. It 'also amended $ 18-18-405(4)(a) to add a reference to public housing developments and to change the phrase "a person under the age of eighteen years" to "any person." Colo. Sess. Laws 1998, ch. 216, §§ 18-18-405(4)(a), 18-18-407(2)(a) at 972.

Legislative history indicates that the intent of the 19983 amendments was to enhance penalties for drug dealing in public housing complexes. Representative Hernandez, a sponsor of the legislation, stated that the sponsors' "number one priority" was "trying to move drug dealing outside public housing developments." Hearings on H.B. 1085 before the House Judiciary Committee, 59th General Assembly, First Session (Feb. 4, 1998). At the same hearing, a representative of the Denver Police Department explained that the amendment to substitute "any person" for "a person under eighteen years" would facilitate police efforts and help ensure convictions where sales of drugs were made to undercover police on school or public housing grounds.

In 1997, the General Assembly repealed § 18-18-405(4)(a) and amended § 18-18-407(2)(a) as follows, deleting the struck words and adding the capitalized words:

18-18-407. Special offender. (2)(a) Upor lection £ iclati ¢ A 9.18 404-or-18-184056-# A DEFENDANT SHALL BE A SPECIAL OFFENDER IF the defendant uplawfully-used-any-eon-18-404-or-sold,-or-distributed IS CONVICTED OF SELLING, DISTRIBUTING, OR POSSESSING WITH INTENT TO DISTRIBUTE any controlled substance in violation of section 18-18-405 TO ANY PERSON either within or upon the grounds of any ... school, or public housing development, or within one thousand feet of the perimeter of any such school or public housing development grounds....

Colo. Sess. Laws 1997, ch. 264 at 1544.

The legislative history of § 18-18-407(2)(a) does not definitively resolve the issue presented here. If anything, however, it appears to support defendant's construction of the statute. Statements made in 1998 indicate that the General Assembly's focus was on preventing the introduction of drugs into public housing developments by enhancing penalties for persons who engaged in drug transactions-including transactions involving undercover police-at those locations. The fact that the 1997 amendment deleted mere "use" of a controlled substance as an offense warranting special offender sentencing further suggests that the General Assembly did not intend to enhance penalties for offenses that did not involve a drug transaction or intended transaction at or near a public housing development.

8.

We thus conclude that both the statutory language and the legislative history either tend to support defendant's proposed construction of the statute or, at a minimum, do not provide support for the People's interpretation. We further recognize that, to the extent an unyielding ambiguity remains, the rule of lenity requires us to construe the statute favorably to defendant. See People v. Shipley, supra; People v. Pierrie, supra. Accordingly, we hold that § 18-18-407(@2)(a) requires a showing that the defendant intended to distribute the controlled substance to a person who was within or on the grounds of the school or public housing development.

C.

Because the jury was not instructed to find, and the evidence did not establish, that defendant intended to distribute the cocaine to someone in or on the grounds of the public housing development, defendant's adjudication and sentence as a special offender must be reversed.

We note at the outset that defendant did not object to the jury instruction or the sufficiency of the evidence on the grounds he raises on appeal. However, because the asserted error is of constitutional dimension, see Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), defendant is nevertheless entitled to reversal unless we are convinced that it was harmless beyond a reasonable doubt. See Blecha v. People, 962 P.2d 931 (Colo.1998).

The jury was instructed here that the elements of the special offender count were:

(1) During the commission of the crime of possession with intent to distribute a controlled substance,
(2) the defendant,
(8) was either within or upon the grounds of any public housing development as defined in these instructions.

In accordance with this instruction, the jury made a special finding that defendant "was either within or upon the grounds of any public housing development during the commission of the crime of possession with intent to distribute a controlled substance."

The instruction did not comport with § 18-18-407(2)(a) in that it did not require the jury to find that defendant intended to distribute the cocaine to someone within or on the grounds of the public housing development. Under the facts of this case, it cannot be said that this omission was harmless beyond a reasonable doubt.

Further, the evidence was insufficient to support defendant's special offender adjudication. Defendant had in his pocket fifty to one hundred rocks of crack cocaine, with a street value of at least $900. Viewed in the light most favorable to the prosecution, the presence of that amount of crack cocaine, together with the pager and money found in defendant's possession, was sufficient to support a conviction for possession with intent to distribute. See People v. Ramirez, 997 P.2d 1200 (Colo.App.1999), aff'd by am equally divided court, 43 P.3d 611 (Colo.2001).

However, this evidence did not establish that defendant intended to distribute the cocaine to anyone within the public housing complex. Defendant was only an occasional overnight guest at his aunt's apartment. There was no evidence that he had conducted any drug-related activities within or on the grounds of the public housing complex or that he had stored any quantities of drugs there. In these cireumstances, we cannot conclude that the evidence, even viewed in the light most favorable to the prosecution and giving the prosecution the benefit of all reasonable inferences from it, was sufficient to support defendant's adjudication as a special offender.

The judgment of conviction for possession of cocaine with intent to distribute is affirmed. Defendant's adjudication and sentence as a special offender is reversed, and the case is remanded for resentencing.

Judge CASEBOLT and Judge NIETO concur.


source: Caselaw Access Project

author: Judge ROY.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Oliver Glenn McPHERSON, Defendant-Appellant.
    No. 00CA1204.
    Colorado Court of Appeals, Div. I.
    Nov. 8, 2001.
    As Modified on Denial of Rehearing Dec. 6, 2001.
    Certiorari Denied Aug. 19, 2002.

      Ken Salazar, Attorney General, Julia A. Thomas, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.
    Mark S. Rubinstein, P.C., Mark S. Rubinstein, Denver, CO, for Defendant-Appellant.
   Opinion by

Judge ROY.

Oliver Glenn McPherson appeals from the trial court's order denying his Crim. P. 85(c) motion. We affirm.

On August 8, 1994, defendant entered into a plea agreement pursuant to which he pled guilty to attempted possession of a schedule I controlled substance. On September 8, 1994, the trial court entered a judgment of conviction and granted defendant three years probation. On January 29, 1996, the trial court revoked defendant's probation and sentenced him to six years in community corrections. On October 21, 1998, defendant was terminated from community corrections.

On January 25, 1999, defendant filed a pro se motion to withdraw his guilty plea on the 'general grounds that an integral part of his plea agreement was that he would not be imprisoned. On that same day, defendant was sentenced without a hearing to six years in the Department of Corrections (DOC). The motion was not ruled upon.

Defendant then, on March 6, 2000, filed this Crim. P. 35(c) motion alleging ineffective assistance of counsel, illegal sentence, and violation of his right to due process of law in the trial court's failure to comply with Crim. P. 5 and Il(b). Without holding a hearing, the trial court dismissed the motion as untimely under the three-year limitation of § 16-5-402(1), C.R.S.2001, and stated that defendant's arguments were otherwise without merit.

I.

We first address defendant's contention that his Crim. P. 35(c) motion was timely. The issues are whether the time limitation of § 16-5-402(1) began to run on September 8, 1994, when the judgment of conviction was entered on defendant's plea and he was granted probation, or on January 29, 1996, when he was sentenced to community corrections; and whether defendant's collateral attack on his conviction was commenced on January 25, 1999, when he filed his motion to withdraw his plea, or on March 6, 2000, when he filed this Crim. P. 35(c) motion through counsel.

Defendant argues that the limitations period began to run when he was resentenced to community corrections on January 29, 1996, and the collateral attack was commenced with the January 25, 1999, filing of his motion to withdraw his guilty plea, and therefore, his motion was timely. We disagree and, using the date of his motion to withdraw his guilty plea as the commencement of the collateral attack, conclude the motion was untimely.

Section 16-5-402(1) provides that, as applicable here, a person convicted of a felony has three years "following the date of said conviction" within which to collaterally attack that conviction. Where, as here, there has been no direct appeal, the date of convietion for purposes of § 16-5-402(1) is the date on which the trial court entered the judgment of conviction pursuant to Crim. P. 82(c). People v. Hampton, 876 P.2d 1236 (Colo. 1994); People v. Wiedemer, 852 P.2d 424 (Colo.19983). A "judgment of conviction" is the recital of the plea, the verdict or findings, the sentence, the finding of the amount of presentence confinement, and costs, if any are assessed against the defendant. Crim. P. 32(c).

Relying on People v. Arnold, 907 P.2d 686 (Colo.App.1995), and People v. Lanford, 867 P.2d 50 (Colo.App.1998), defendant argues that his date of conviction was the date of his sentence to community corrections. However, Arnold dealt with the time within which a defendant may file a Crim. P. 85(b) motion for reconsideration of a sentence and held that the 120-day limitation contained in that rule applies to resentencing. Thus, Arnold has no bearing on the issue presented here.

In Lanford, the defendant filed a Crim. P. 35(c) motion arguing that he had not been advised of mandatory parole and requesting that his sentence to incarceration be reduced by the length of the mandatory parole to which he was subject. The trial court, sua sponte, held that the motion was not timely under § 16-5-402(1). The defendant then argued that his motion was a challenge to his sentence, not his conviction. A division of this court adopted the language of Crim. P. 32 as the definition of conviction under § 16-5-402(1) and held that the time limitations of that statute applied to the defendant's motion even if characterized as a challenge to the sentence. Thus, Lanford also is of no assistance to defendant.

Resentencing does not create a new "conviction." Upon revocation of probation, a court may impose any sentence, including probation, that originally could have been imposed or granted. Section 16-11-206(5), C.R.S.2001. Upon termination of a sentence to community corrections following acceptance, the trial court may sentence a defendant to the DOC without a hearing as long as the sentence to the DOC does not exceed the sentence to community corrections. Section 17-27-104(1)(e), C.R.9.2001.

In People v. Chavez, 32 P.3d 613 (Colo. App.2001), a division of this court concluded that resentencing a defendant to the DOC after he had been accepted and then rejected by a community corrections program was not, for double jeopardy purposes, a new conviction because the defendant did not have a reasonable expectation of finality in his sentence to community corrections.

Thus, the sentencing scheme contemplates that upon revocation of probation or rejection from community corrections the trial court will have escalating sentencing alternatives available. Hence, resentencing after a revocation or rejection does not result in the entry of a new judgment of conviction for the purposes of § 16-5-402(1).

Defendant's date of conviction for the purposes of § 16-5-402(1) was August 8, 1994. All of the acts constituting a judgment of conviction under Crim. P. $2(c) occurred on or before that date. Subsequently, the trial court did not revisit the question of defendant's guilt, but instead resentenced defendant after he violated the conditions of his probation and placement in community corrections. Consequently, defendant's motion to withdraw his guilty plea filed on January 25, 1999, was not timely as a Crim. P. 85(c) motion. See People v. Cummins, 37 P.3d 507 (Colo.App.2001).

IL.

' Alternatively, defendant contends that the trial court erred in not finding that his failure to file his Crim. P. 35(c) motion within the requisite three years was due to justifiable excuse or excusable neglect. We disagree.

Section 16-5-402(2)(d), C.R.S.2001, provides that a court may hear a collateral attack commenced after the three-year period if it "finds that the failure to seek relief within the applicable time period was the result of cireumstances amounting to justifiable excuse or excusable neglect." In People v. Wiedemer, supra, the supreme court set forth the following factors to consider in determining whether a defendant's inaction is attributable to justifiable excuse or excusable neglect: (1) whether there existed circumstances or outside influences preventing a challenge to a prior conviction; (2) whether a defendant having reason to question the constitutionality of a conviction investigates its validity and takes advantage of avenues of relief that are available; (8) whether a defendant either knew that the conviction was constitutionally infirm or had reason to question its validity; (4) whether a defendant had other means of preventing the government's use of the conviction so that a postconviction challenge was previously unnecessary; (5) the length of time that has elapsed between the date of conviction and defendant's challenge; and (6) the effect that such period has on the state's ability to defend against the challenge.

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

On appeal, defendant does not contend that the trial court's findings and conclusions are not supported by the record. Instead, he realleges the arguments presented to the trial court: (1) that defendant possessed no need to challenge his conviction until after his sentence to community corrections was terminated, because that was when he discovered the. constitutional infirmity of his sentence; (2) that his defense counsel never advised him of his right to seek post-conviction relief; and (8) that he abided by the terms of the plea agreement until his termination from community corrections.

However, as stated by the trial court, defendant has always possessed a need to challenge his conviction. See People v. Wiedemer, supre. Further, defendant's indi-genee, ignorance of the law, and lack of legal counsel do not amount to justifiable excuse or excusable neglect for an untimely filed collateral attack. See People v. Vigil, 955 P.2d 589 (Colo.App.1997). In addition, the trial court gave no credence to defendant's statement that his counsel had failed to advise him of his postconviction rights because he immediately filed a motion to withdraw his plea when a sentence to DOC was imminent.

Thus, we conclude that the trial court's finding that defendant failed to prove justifiable excuse or excusable neglect is supported by the record.

TIL.

Finally, defendant argues that the trial court violated his right to due process of law by not holding a hearing and not providing counsel when the court resentenced him to a six-year term in the DOC on January 25, 1999. We disagree.

Section 17-27-105(1)(e), C.R.S.2001, provides that:

If an offender is rejected after acceptance by a community corrections board or a community corrections program, the court may resentence the offender without any further hearing.so long as the offender's sentence does mot exceed the sentence which was originally imposed upon the offender. (emphasis added) Defendant argues that his sentence to six

years in the DOC exceeded his original sentence to three years of probation. However, that comparison is not determinative. As already indicated, a separate statute deals with resentencing following the revocation of probation and permits the court to sentence a defendant to any sentence that originally could have been imposed or granted. Section 16-11-206(5).

Section 17-27-105(1)(e) deals only with re-sentencing following the failure of a community corrections placement, and its reference to the sentence "originally imposed" means the sentence to community corrections and not the prior grant of probation. Because the sentence to the DOC did not exceed his sentence to community corrections, at which time he was provided both a hearing and representation of counsel, we conclude that the lack of another hearing or counsel did not violate any of defendant's due process rights.

Because we have concluded that the trial court properly dismissed defendant's Crim. P. 35(c) motion as untimely, we need not consider defendant's remaining contentions.

Order affirmed.

Judge METZGER and Judge DAVIDSON concur.


author: Judge KAPELKE.

text:
    ESTATE OF Michelle M. WRIGHT, by and through the Personal Representative of the Estate, Frank J. WRIGHT; Frank J. Wright, individually, on behalf of himself, and Claire Wright, the Parents of Michelle M. Wright, Plaintiffs-Appellees, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant, Appellant.
    No. 00CA1474.
    Colorado Court of Appeals, Div. V.
    Nov. 8, 2001.
    Certiorari Denied Sept. 3, 2002.

      Overturf & McGath, P.C., Brandon P. Hull, Dawn-Carol Harris, Kissinger & Fell-man, P.C., Kenneth S. Fellman, G. Harris Adams, Denver, CO, for Plaintiffs-Appellees.
    Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder, CO; Johnson & Ayd, P.C., James D. Johnson, Denver, CO, for Defendant-Appellant.
   Opinion by

Judge KAPELKE.

In this action arising from the death of Michelle M. Wright (decedent), defendant, United Services Automobile Association (USAA), appeals the judgment in favor of plaintiffs, decedent's parents and her estate. USAA challenges the trial court's ruling that, because decedent died as a result of a "felonious killing," the statutory cap on recovery of noneconomic damages does not apply and USAA is therefore liable for the maximum amount of uninsured motorist (UM) coverage under its policy. We affirm.

Decedent was killed in a head-on automobile collision. The driver of the car that struck the car in which decedent was a passenger was uninsured. In this action, plaintiffs asserted a wrongful death claim against the uninsured driver and also claims against USAA based on the UM coverage of the policy that insured decedent. By counterclaim, USAA sought a declaratory judgment that its liability was limited to $250,000, the statutory cap on noneconomic damages under § 13-21-2083, C.R.8.2001.

After the trial court denied a motion for summary judgment filed by USAA, plaintiffs filed a motion pursuant to § 15-11-808(7), C.R.S.2001, to determine whether the elements of "felonious killing" of the decedent had been established and whether the statutory eap was therefore inapplicable.

Pursuant to plaintiffs' motion, and based on undisputed facts, the court found that the driver's conduct satisfied the elements of manslaughter and thus constituted a felonious killing as defined in $ 15-11-808(1)(b), C.R.S.2001. Ruling that the exception to the statutory cap on noneconomic damages under § 13-21-2083 therefore applied, the court entered judgment against USAA for the unpaid balance of the $1.1 million policy limit provided for UM coverage.

I.

USAA first contends that the "felonious killing" exception to the statutory cap on recovery of damages for noneconomic loss in a wrongful death action does not apply where, as here, the tortfeasor pled guilty to vehicular homicide under $ 18-3-106, C.R.S. 2001. We disagree.

The interpretation of a statute is a question of law which we review de novo. In interpreting statutes, we must give full effect to the intent of the General Assembly. To determine that intent, we look first to the words used, which must be read in context and accorded their plain and ordinary meaning. Minch v. Town of Mead, 957 P.2d 1054 (Colo.App.1998).

Recovery of damages for wrongful death is allowed under § 18-21-202, C.R.S.2001. With respect to damages for noneconomic loss or injury, however, § 183-21-203(1), C.R.S8.2001, provides that the amount of recovery is limited to $250,000 unless the "wrongful act, neglect, or default causing death constitutes a felonious killing, as defined in section 15-11-808(1)(b), C.R.S., and as determined in the manner described in section 15-11-808(7), C.R.S.," in which event there is no limitation.

As noted in its title, § 15-11-808, C.R.S. 2001, the so-called "slayer statute," governs the effect of a homicide on "intestate succession, wills, trusts, joint assets, life insurance and beneficiary designations."

Section 15-11-808(1)(b) provides:

"Felonious killing", except as provided in subsection (7) of this section, is the killing of the decedent by an individual who, as a result thereof, is convicted of, pleads guilty to, or enters a plea of nolo contendere to the crime of murder in the first or second degree or manslaughter, as said crimes are defined in sections 18-8-102 to 18-8-104, C.R.S. {emphasis added)

Subsection 7 of that statute provides, in pertinent part: "Notwithstanding the status or disposition of a criminal proceeding, a court of competent jurisdiction, at any time, upon the petition of an interested person, shall determine whether, by a preponderance of evidence standard, each of the elements of felonious killing of the decedent has been established." Section 15-11-808(7), C.R.S. 2001 (emphasis added).

Here, the uninsured driver pled guilty to DUI vehicular homicide under § 18-3-106, a class 3 felony. Nonetheless, upon the petition of plaintiffs as interested persons, the court found that the elements of manslaughter had been established by a preponderance of the evidence. Relying on undisputed facts, including the driver's high blood alcohol level, failure to turn on his headlights, and driving into oncoming traffic, the court ruled that the driver's conduct "recklessly cause[d] the death of another person," which is the definition of manslaughter under $ 18-3-104(1)(a), C.R.S.2001. Given the undisputed facts, we agree that the plain language of § 15-11-803(7) permitted the trial court to make this determination.

That the driver was convicted, upon a plea, of vehicular homicide does not alter our conclusion. The language of § 15-11-803(7) is clear and unambiguous. It states that "[nlotwithstanding the status or disposition of a eriminal proceeding," a court may independently determine whether, under a preponderance of the evidence standard, the elements of a felonious killing have been met.

USAA contends that this language should be interpreted to mean that the court may make such a determination only if there has not yet been a conviction of first or second degree murder or manslaughter or if the decedent's killer was acquitted of one of the listed crimes. According to USAA, the person causing the death must at least have been charged with one of the enumerated crimes before the conduct can be considered a felonious killing for the purpose of the exception to the cap on recovery of noneco-nomic damages for wrongful death.

However, the plain language of the statute does not require such a restrictive reading. The first sentence of § 15-11-803(7) provides that a judgment of conviction, guilty plea, or plea of nolo contendere "conclusively establishes" that the person is a felonious killer for purposes of this section. However, the next sentence provides that "[njotwithstanding the status or disposition of a criminal proceeding," a court of competent jurisdiction may make a civil determination whether the elements of felonious killing have been established by a preponderance of the evidence. The language is broad enough to allow such a determination even where the person was acquitted or was convicted of a lesser offense, or where no criminal proceeding was ever initiated.

Our conclusion is supported by Bernstein v. Rosenthal, 671 P.2d 979 (Colo.App.1988), which involved interpretation of a predecessor to § 15-11-8038, Colo. Sess. Laws 1978, ch. 451, § 153-2-803(5) at 1564 (formerly codified as § 15-11-808(5)). In Bernstein, a husband who was the beneficiary of his wife's insurance policy had killed her and then committed suicide. A division of this court determined that even though there had been no criminal proceeding, the trial court could nonetheless find, based on a preponderance of the evidence, that the husband was guilty of first or second degree murder or manslaughter of his spouse and that the husband's estate was thus precluded from recovering under the policy.

Further, we are not persuaded that a different outcome is required because the death here was caused by the reckless operation of a motor vehicle. To prove a felonious killing for purposes of § 15-11-8038, it need only be shown that the conduct of the person who caused the death meets the elements of first or second degree murder or manslaughter. There is no basis for concluding that the elements of manslaughter are not present where the instrumentality causing the death was a motor vehicle.

To obtain a conviction on a charge of manslaughter, the prosecution must show that the accused's conduct caused the death of another and that the accused: (1) consciously disregarded (2) a substantial and (8) unjustifiable risk that he or she would (4) cause the death of another. People v. Hall, 999 P.2d 207 (Colo.2000). Those elements were proven here.

USAA argues that the exception to the damages cap does not apply here as the uninsured driver could not have been convict, ed of manslaughter, because there is a specific criminal statute, § 18-8-106, governing reckless vehicular homicide. Even if we were to assume that enactment of that statute was somehow intended to preclude a conviction for manslaughter where a motor vehicle was involved, the exception to the cap on statutory damages does not require a showing that a conviction was or could have been obtained. Rather, it need only be shown that the conduct satisfies the statutory elements of manslaughter.

Finally, we perceive no reason to alter our conclusion based on the fact that this case involves the contractual liability of an insurer rather than the tort liability of the person who caused the death. The purpose of uninsured and underinsured motorist coverage under § 10-4-609, C.R.S.2001, is to compensate an innocent insured fully for loss caused by financially irresponsible motorists, subject to the policy limits, and to place the insured in the same position as if the uninsured or underinsured motorist had liability coverage equal to that of the insured. De-Herrera v. Sentry Ins. Co., 30 P.3d 167 (Colo. 2001); State Farm Mut. Auto. Ins. Co. v. Tye, 931 P.2d 540 (Colo.App.1996).

USAA, as the UM carrier, contractually agreed to place its insured in the same position as if the uninsured tortfeasor had liability insurance. The policy states; "We will pay compensatory damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle." Because plaintiffs would be legally entitled to recover uncapped noneconomic damages from the driver who caused decedent's death or from the driver's liability insurer, they are entitled to recover the amount of such damages from USAA, subject to policy limits.

Accordingly, we find no error in the trial court's determination that decedent's death was caused by a felonious killing and that the statutory cap on noneconomic damages therefore does not apply.

IL.

Relying on Lira v. Shelter Ins. Co., 913 P.2d 514 (Colo.1996), USAA next contends that the felonious killing exception to the damages cap is intended to punish the killers by subjecting them to open-ended liability and that subjecting insurers to such liability thus violates Colorado's public policy prohibiting insurance carriers from providing coverage for punitive damages. We reject the contention.

The award at issue here was based on plaintiffs' actual compensatory damages, not on punitive damages. Further, rather than authorizing recovery of punitive damages, the provision in § 18-21-2083 simply removes the limitation on noneconomic damages where the death resulted from a felonious killing.

We note that § 13-21-208 governing recovery for wrongful death was recently amended to allow recovery of punitive damages "in addition to the actual damages," where the death is attended by cireum-stances of fraud, malice, or willful and wanton conduct. Colo. Sess. Laws 2001, ch. 128, § 13-21-208(8)(7) at 377-78. This amendment evidences a legislative recognition that compensatory damages for noneconomic loss are distinct from punitive damages.

We thus reject USAA's contention that the trial court's judgment requires USAA to pay punitive damages and is therefore in violation of public policy.

Accordingly, the trial court properly determined that USAA's liability under the UM coverage is not limited by the $250,000 statutory cap on recovery of noneconomic dam-

ages.

The judgment is affirmed.

CASEBOLT and VOGT, JJ., concur.


author: Judge CRISWELL.

text:
    SANDSTONE INVESTMENTS I, LLC, Plaintiff-Appellant, v. A. EVERETT WILLIAMS 1963 TRUST and George C. Williams 1963 Trust, Defendants-Appellees.
    No. 00CA1661.
    Colorado Court of Appeals, Div. V.
    Nov. 8, 2001.
    Certiorari Denied Aug. 19, 2002.

      Chrisman, Bynum & Johnson, P.C., Darrell M. Daley, Jack M. Graves, Boulder, CO, for Plaintiff-Appellant.
    Trine & Metcalf, P.C., William A. Trine, Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder, CO, for Defendants-Appellees.
   Opinion by

Judge CRISWELL.

In this contract dispute, plaintiff, Sandstone Investments I, LLC, appeals the trial court's judgment denying specific performance of its contract to purchase realty from defendants, the A. Everett Williams 1963 Trust (Everett Trust) and the George C. Williams 1963 Trust (George Trust). Plaintiff specifically disputes the court's conclusion that another contract between the trusts and Petur S. Williams (Petur) was properly consummated. We reverse.

A single trustee acted as such for both the Everett Trust and the George Trust. Each trust held a fifty percent interest in two parcels, one of which is the subject of this litigation (the property).

In 1998, the trustee decided to sell each trust's interest in the property, and he engaged a real estate agent to act on behalf of both. Ultimately, Petur, one of the beneficiaries of the George Trust, entered into an agreement with the trustee to purchase each trust's interest in the property.

The trustee also entered into what has been referred to as a "backup" contract with plaintiff. This contract acknowledged the existence of Petur's agreement and that that agreement established a closing date of July 1, 1999. Plaintiffs contract provided, then, that if Petur's agreement was "not consummated," the real estate agent was to notify plaintiff of that fact, and plaintiff's contract would become effective. Plaintiff would then be required to pay $25,000 in certified funds "on or before July 6, 1999"; the closing under plaintiff's contract would oceur "[oln a date agreed to by all parties, but no later than July 23, 1999"; and plaintiff would be given possession of the property at the time of the closing.

Petur's agreement did not close on July 1, 1999. Rather, on June 80, 1999, he requested a sixty-day extension of time to close. On July 1, the trustee offered to extend the closing date only to August. 2, and on July 9, Petur accepted this counterproposal. Plaintiff was not consulted with respect to this extension.

Meanwhile, on July 6, before Petur's agreement was extended, the real estate agent delivered a letter to plaintiff stating that the "pending sale [to Petur] set for July 1, 1999 did not close," but that the trustee had offered to extend the closing date to August 2. On the same day, in compliance with the terms of its contract, plaintiff delivered $25,000 in certified funds to the trustee's agent.

Thereafter, the trusts determined that, for tax reasons, the property should not be sold. Therefore, they agreed to exchange property interests, so that the George Trust would become the owner of the property and the Everett Trust would become the owner of the other parcel. This exchange took place on August 2, 1999, and thereafter, the George Trust leased the property to an entity controlled by Petur.

After this exchange was accomplished, plaintiff was notified that the property was no longer available for sale, and its earnest money was returned. Thereupon, plaintiff filed this action asserting that Petur's agreement had not been consummated and seeking specific performance of its contract.

The trial court rejected plaintiff's claim, concluding that the exchange of property interests by the trusts constituted a "consummation" of Petur's original agreement. Plaintiff appeals from the resulting judgment.

I.

Plaintiff contends that, because Petur's agreement was not "consummated" by July 1, 1999, the only condition precedent to the effectiveness of its contract occurred, and it was entitled to close on the sale to it no later than July 28, 1999, as its contract required. We agree.

We first observe that classifying plaintiff's contract as a "backup" contract, as counsel do, does little to forward the analysis of the parties' respective rights and obligations. The term "backup" here indicates only that, in accordance with its specific terms, its effectiveness was subject to an express condition precedent, ie., the failure of Petur's agreement to be "consummated."

However, the obligations assumed by the parties under plaintiff's contract were no less solemn or binding than those contained in Petur's agreement. And, if that condition precedent occurred, the trustee's obligation to sell to plaintiff became absolute. See City of Colorado Springs v. Mountain View Electric Ass'n, 925 P.2d 1878, 1888 (Colo.App. 1995)("[A] lawful contract based on valuable consideration for the delivery of a thing in the future, upon the happening of an event which may occur, creates enforceable rights and obligations.").

Nevertheless, the trusts argue and the trial court found that the language in plaintiff's contract used to describe the condition, ie., that Petur's agreement not be "consummated," is ambiguous. Given the undisputed circumstances of the parties when plaintiffs contract was executed, we disagree. Rather, we conclude that this language must, necessarily, refer to a closing under Petur's agreement by July 1, 1999.

The determination whether a provision in a contract is ambiguous is a question of law. Fibreglas Fabricators, Inc. v. Kylberg, 799 P.2d 371, 374 (Colo.1990). To ascertain whether a provision is ambiguous, it must be examined and construed in harmony with the plain meaning of the words employed and by reference to all parts and provisions of the contract and to the nature of the transaction forming its subject matter. Fire Insurance Exchange v. Rael, 895 P.2d 1139, 1143 (Colo.App.1995).

A contract is ambiguous only if it is reasonably susceptible to more than one meaning. Cheyenne Mountain School District #12 v. Thompson, 861 P.2d 711, 715 (Colo.1998). The mere fact that the parties differ in their interpretation of an instrument does not itself create an ambiguity. Fibreg-las Fabricators, Inc. v. Kylberg, supra, 799 P.2d at 374.

-In deciding whether a contract is ambiguous, a court may consider extrinsic evidence bearing upon the meaning of the written terms. However, the court may not consider the parties' own extrinsic expressions of intent. KN Energy, Inc. v. Great Western Sugar Co., 698 P.2d 769, 777 (Colo. 1985).

Here, plaintiff's contract was negotiated with full knowledge of Petur's agreement, which specifically called for a closing by July 1, 1999. Plaintiffs contract, then, provided that it would become effective if Petur's agreement was not "consummated" in which event plaintiff was required to deposit $25,000 in certified funds by July 6, 1999, and a closing under plaintiff's contract was to occur before July 28, 1999. Plaintiff's contract, therefore, clearly contemplated that there would be a closing under Petur's agreement by July 1, or if not, plaintiff would be required to make its deposit with the real estate agent by July 6. Given these cireum-stances, the term "consummated" as used in plaintiff's contract is not ambiguous; it could only have been intended to refer to a closing under Petur's agreement by July 1, and to no other event.

This conclusion is in no manner inconsistent with the opinion in Fiorelli v. Transamerica Financial Services, Inc., No. 98CA29, 1998 Ohio App. LEXIS 5120 (Ohio Ct.App. Oct. 2, 1998)(unreported), relied upon by the trusts and the trial court. There, the so-called primary contract made the buyer's obligation subject to the condition precedent of the buyer obtaining suitable financing. The so-called backup contract made its effectiveness dependent upon the primary contract not being "executed and completed" by a specified date. The buyer under the primary contract obtained suitable financing by that date, but a closing did not oceur until a few days later. Noting that the backup contract (unlike plaintiff's contract here) made no reference to any closing date, the court held that the quoted phrase referred to the occurrence of the express condition precedent in the primary contract, the obtaining of financing, and not to a date for the closing of the transaction.

Here, in contrast, both contracts established "closing" dates, and given the specific provisions of each, the term "consummated" in plaintiff's contract could only have referred to a closing under Petur's agreement on or before July 1.

IL

The trusts argue, however, that the trustee and Petur, as parties to the primary agreement for sale of the property, had the right, with or without the consent of plaintiff, to extend the date for closing under that agreement. However, we conclude that, even if they retained the right to extend the closing date, such extension could not affect plaintiff's rights under the specific terms of its contract unless it consented to such an extension.

We recognize that, generally, the parties to an agreement may modify that agreement at any time after its execution and even in a manner expressly forbidden by that agreement. James H. Moore & Associates Realty, Inc. v. Arrowhead at Vail, 892 P.2d 867 (Colo.App.1994).

Nevertheless, here, by agreeing that plaintiff's contract would become effective if there were no closing under Petur's agreement by July 1, and by requiring that, if no such closing under Petur's agreement occurred, plaintiff was to make its deposit by July 6, the trustee became obligated to close under plaintiff's contract pursuant to its terms, unless plaintiff consented to an extension of its contract. Such an extension was never requested or agreed upon.

Here, in entering into Petur's agreement, the trustee established a specific date for the closing, and he failed to expressly reserve the right to extend that date. Later, when he entered into plaintiff's contract, he also agreed, if Petur's agreement were not consummated, to close with plaintiff no later than a specific date. Again, no express right to extend that date was reserved.

We note that plaintiff's contract need not have specified a particular date for plaintiff's deposit of funds or for closing. It could simply have provided that such actions were to occur within a specific number of days after notification of the failure of consummation of Petur's agreement. However, having agreed upon specific dates for the performance both by Petur and by plaintiff, the trustee could not thereafter change the date for the parties' performance under plaintiff's contract without plaintiff's consent. By agreeing to extend the date for Petur's performance to August 1, therefore, the trustee rendered it impossible to perform the contract obligation he owed to plaintiff without violating Petur's amended agreement. And, the trustee could not honor his agreement to extend Petur's closing date without violating the specific terms of plaintiff's contract.

We conclude, therefore, that the specific terms of plaintiffs contract restricted the trustee's right to amend Petur's agreement, if by doing so, he would be prevented from performing his obligation under plaintiff's contract. Hence, because Petur's agreement was not consummated in accordance with its original terms, plaintiff was entitled to have the trustee convey the property to it in accordance with the terms of plaintiff's contract.

IIL

The trial court appears also to have concluded that plaintiff waived its right to object to the extension of Petur's closing date. If the court did, in fact, reach this conclusion, it is not supported by the record. See Vessels Oil & Gas Co. v. Coastal Refining & Marketing, Inc., 764 P.2d 391 (Colo. App.1988) (if facts are undisputed, appellate court may review issue of waiver on a de novo basis).

The only evidence of any waiver consists of a statement by plaintiff to its attorney made in writing on July 26. In this writing, plaintiff expressed as its practical "bottom line" that, while it might not object to a tax-free exchange of properties, rather than a sale to Petur, "if the property is not conveyed only to [Petur] on 8/8, we get it." There is no evidence that either the trustee or Petur were made aware of that statement at the time, and indeed, it appears to have been made in confidence.

However, even if a confidential statement to counsel could appropriately be relied upon as evidence of a waiver, plaintiff's alleged waiver here was conditioned upon the property being conveyed only to Petur. That condition never occurred, and any alleged waiver, therefore, never became effective.

IV.

Plaintiff also argues that Petur's agreement was not "consummated" because its later amendment resulted in a novation and the creation of an entirely new contract. However, because of the conclusions we have reached above, we need not address this issue.

The judgment is reversed, and the case is remanded with directions to enter a decree of specific performance consistent with the view expressed in this opinion.

Judge KAPELKE and Judge NIETO concur.

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


author: Judge ROTHENBERG.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Ricky WICKHAM, Defendant-Appellant.
    No. 99CA2087.
    Colorado Court of Appeals, Div. II.
    Nov. 23, 2001.
    Certiorari Denied Sept. 16, 2002.

      Ken Salazar, Attorney General, Evan W. Jones, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Martin Gerra, Deputy State Public Defender, Denver, CO, for Defendant-Appellant.

       Justice COATS does not participate.

   Opinion by

Judge ROTHENBERG.

Defendant, Ricky Wickham, appeals the judgment of conviction entered on a jury verdict finding him guilty of felony murder, robbery, and aggravated motor vehicle theft. We vacate the robbery conviction and otherwise affirm.

In October 1998, defendant's companion stabbed the victim repeatedly until he died, while defendant assisted. The two assailants then stole the victim's ATM card, his wallet, a cell phone, a pager, two VCRs, and stereo equipment. They loaded these belongings into the victim's car and drove away in it.

After the police found the victim's body, defendant's parole officer identified defendant in ATM surveillance videos that showed defendant withdrawing funds from the victim's bank account. The police later obtained a warrant to search defendant's house for items stolen from the victim.

Sixteen days after the murder, defendant was arrested on an existing warrant for violating his parole, and the police searched his house pursuant to the search warrant. They uncovered several pieces of incriminating evidence.

I.

Defendant first contends that his videotaped confession was involuntary and that the trial court violated his right to due process by admitting it into evidence. We disagree.

The trial court initially viewed the videotaped confession, found it was voluntary, and admitted it. Because neither party contests the facts that controlled the trial court's determination whether to admit the videotaped confession, we review its admission de novo. See People v. Valdez, 969 P.2d 208 (Colo.1998)(when no dispute remains regarding the controlling facts, question on appeal is one of law and is reviewed de novo).

Involuntary confessions must be excluded under the Due Process Clause. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); People v. Raffaelli, 647 P.2d 280 (Colo.1982). For a confession to be involuntary, police coercion must have played a significant role in obtaining it. Colorado v. Conmelly, 479 U.S. 157, 164, 107 S.Ct. 515, 520, 93 L.Ed.2d 473, 482 (1986)("all [confession cases] have contained a substantial element of coercive police conduct"); People v. Miranda-Olivas, 41 P.3d 658 (Colo. 2001); People v. Gennings, 808 P.2d 839, 843 (Colo.1991) ("(al confession or inculpatory statement is involuntary if coercive governmental conduct played a significant role in inducing the statement").

In determining whether the confession here was involuntary, the inquiry is whether defendant's will was overborne by physically or mentally coercive government conduct. People v. Valdez, supra. However, even where a causal connection exists between police misconduct and the defendant's confession, a violation of due process does not automatically ensue. Colorado v. Connelly, supra (n.2). Rather, the court must look at the totality of the cireumstances. See Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).

We initially observe that defendant relies upon earlier opinions, including one by the United States Supreme Court, that held confessions were per se involuntary when elicited using threats or promises. See Bram v. United States, 168 U.S. 582, 18 S.Ct. 188, 42 L.Ed. 568 (1897); People v. Pineda, 182 Colo. 385, 518 P.2d 452 (1978). In later cases, however, the per se approach has been criticized, and the current weight of authority now holds that the totality of cireumstances should be applied in analyzing the voluntariness of confessions. See Arizona v. Fulminante, supra; see also Taylor v. Singletary, 148 F.3d 1276 (11th Cir.1998)(stating that the language in Bram advocating a per se rule on voluntariness was dicta and that other language there suggested a totality of circumstances approach); People v. McCormick, 881 P.2d 428 (Colo.App.1994)(Bram language was dicta and the correct standard is totality of the cireumstances, as set forth in Arizona v. Fulminante, supra ).

Accordingly, we look to the totality of the cireumstances in analyzing the voluntariness of defendant's videotaped confession. See Arizona v. Fulminante, supra; People v. Miranda-Olivas, swpra; People v. Gray, 975 P.2d 1124 (Colo.App.1997).

Threats and promises used by the interrogator factor into the analysis of volun-tariness but are not conclusive. For such threats and promises to render a confession involuntary, they must have caused the defendant to confess, for example, where police have promised leniency in exchange for a confession or have threatened harmful consequences unless the defendant confesses. See People v. Valdez, supra (requiring a causal connection between abrasive demeanor of interrogator and the defendant's confession for it to be involuntary); see also United States v. Fraction, 795 F.2d 12, 15 (8d Cir.1986)(defining a promise in the context of a confession as "an offer to perform or withhold some future action within the control of the promi-sor, in cireumstances where the resulting action or inaction will have an impact upon the promisee").

Other appropriate factors to be considered include:

whether the defendant was in custody or was free to leave and was aware of his situation; whether Mirando warnings were given prior to any interrogation and whether the defendant understood and waived his Miranda rights; whether the defendant had the opportunity to confer with counsel or anyone else prior to the interrogation; whether the challenged statement was made during the course of an interrogation or instead was volunteered; whether any overt or implied threat or promise was directed to the defendant; the method and style employed by the interrogator in questioning the defendant and the length and place of the interrogation; and the defendant's mental and physical condition immediately prior to and during the interrogation, as well as his educational background, employment status, and prior experience with law enforcement and the criminal justice system.

People v. Gennings, supra, 808 P.2d at 844.

. In support of defendant's assertion here that his confession was involunfary, he relies on several cases. We conclude each is distinguishable.

People v. Pineda, supra, applied the per se rule regarding threats and promises in determining whether the defendant's confession was involuntary. Because the per se rule is no longer applied by the United States Supreme Court or in more recent Colorado cases, Pineda does not require us to accept defendant's argument.

The same is true of People v. Gennings, supra. There, the supreme court reversed the trial court's finding that the defendant's statement was involuntary, after concluding the finding was unsupported by the record:

[We cannot say with any assurance that the polygraph examiner's conduct played so significant a role in overbearing the defendant's will as to have caused the defendant's statement to be constitutionally involuntary. -

People v. Gennings, supra, 808 P.2d at 846-47.

Defendant's reliance on People v. Quintana, 198 Colo. 461, 601 P.2d 850 (1979), is also misplaced. While the supreme court there upheld the trial court's finding that the defendant's confession was involuntary, the police had promised him leniency and assistance in exchange for his confession. Such promises were not made to defendant here.

Nor does People v. Freeman, 668 P.2d 1371 (Colo.1983), require a different result. After examining the record, the supreme court there concluded the defendant's statement was involuntary based on several coercive techniques that had been used by multiple interrogating officers. Those techniques included: (1) referring to charges that the defendant might face if not cleared; (2) minimizing the seriousness and extent of the defendant's culpability if he confessed; (8) telling the defendant that he could not talk to his girlfriend unless he confessed; (4) employing a "Mutt and Jeff" tactic in which one officer berated the defendant while another reassured and complimented him; and (5) making false representations regarding their knowledge of the evidence and asserting the defendant was obviously guilty. People v. Freemam, supra, 668 P2d at 1379-80. Again, such conduct did not occur in this case.

People v. Valdez, supra, offers more guidance. There, multiple officers had interrogated the defendant. The court considered the totality of the cireumstances and was persuaded by several factors to conclude the defendant's confession was voluntary. The factors recited were: (1) a lack of a causal connection between the angry, condemning demeanor of one interrogator and the confession; (2) the absence of a nexus between the defendant's alleged confusion with respect to the questioning and the confession; and (8) the fact that the interview only lasted an hour and twenty minutes, even though the defendant claimed to have been tired and hungry. The supreme court also found significant the fact that the defendant denied the charges throughout the interview, that he understood the meaning and extent of his rights and waived them, and that he was given water and never asked for food. People v. Valdes, supra, 969 P.2d at 212-18.

Here, following defendant's arrest, he was given Miranda warnings before any questioning, and he waived his rights. Evidence also was presented that he was mentally and physically healthy before and during the questioning, that he was not intoxicated, that he did not suffer from mental illness, that he never mentioned being tired to the detective, that he had successfully earned a GED diploma, and that he had prior experience in the juvenile criminal justice system. In fact, he was on parole at the time of this offense.

Defendant also appeared lucid during the interview, which lasted approximately five hours and took place in a typical police interrogation room. Defendant was given breaks, beverages, and cigarettes, and while the interview was long, the length of the questioning was caused by the fact that he changed his story several times.

We acknowledge, as do the People, that the detective made two comments that may be interpreted as promises. He said, "Keep on telling me. This is what's going to help you, bud. Tell me." Before defendant confessed to the final version of his story, the detective also stated: "I can't help you and go to bat for you if I know I don't get all the story because I can't put myself on the line knowing that I don't know all the facts." However, the detective never told defendant he would provide specific help in exchange for defendant's confession.

Defendant also contends the detective threatened him by telling him he would suffer adverse consequences if the investigators found evidence against him. Defendant's confession followed the detective's suggestion that defendant's companion, when arrested, would implicate defendant and that defendant had one last chance to respond to the questions. Nevertheless, the detective never threatened any action against defendant if he refused to confess, and the videotape shows the detective's tone throughout the interview was not overbearing.

While we do not condone the detective's conduct in misrepresenting the seope of the charges defendant faced and the extent of his knowledge concerning fingerprint evidence, this conduct nevertheless does not compel a conclusion that defendant's statement was involuntary. See Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969); Lucero v. Kerby, 133 F.3d 1299 (10th Cir.1998)(interviewer's admittedly false statements regarding fingerprint evidence did not make confession involuntary without more evidence of coercion).

We therefore conclude the trial court did not err in determining that defendant's confession was voluntary and in admitting it at trial. See People v. Valdez, supra.

IL

Defendant next contends the trial court erred in permitting his wife to testify against him in violation of his due process rights. However, defendant has not cited to, nor are we aware of, any case law suggesting that the marital privilege is a constitutional right. See In re Marriage of Bozarth, 779 P.2d 1346, 1348 (Colo.1989)(stating that the marital privilege is a "statutory privilege"); see also People v. Thompson, 950 P.2d 608 (Colo.App.1997)(stating that the marital privilege developed from the common law without reference to any constitutional rights).

IIL

We also reject defendant's contention that the trial court erred in permitting his wife to testify against him in violation of the marital privilege established in § 18-90-107(1)(a)(II), C.R.S.2001.

Before the wife testified, the trial court stated its interpretation and application of the privilege statute, and the following brief colloquy occurred:

Court: Okay.... Both counsel [for the People and for the wife] are of the view that the privilege would not apply because we have a prosecution of first degree murder. [Defense counsel], do you want to jump in here or not?
Defense Counsel: Thank you. No, Your Honor.

Because defendant did not make a specific objection to the wife's testimony based on privilege, we apply the plain error standard of review to this alleged error. See Wilson v. People, 748 P.2d 415 (Colo.1987)(an error in trial proceedings to which an accused fails to make a contemporaneous objection will not be the basis for reversal unless it casts serious doubt upon the basic fairness of the trial itself); see also Crim. P. 52(b)(plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court).

Section 18-90-107(1)(a)(I) provides, in pertinent part, that:

a husband shall not be examined for or against his wife without her consent, nor a wife for or against her husband without his consent; nor during the marriage or afterward shall either be examined without the consent of the other as to any communications made by one to the other during the marriage.... -

This portion of the statute thus allows the defendant-spouse to prevent the other spouse from testifying based on marital privilege.

However, the first sentence of § 183-90-107(1)(a)(II) provides that if, as here, the defendant spouse is charged with a class one, two, or three felony under § 18-1-105(1)(a)(IV) to (V), C.R.S.2001, the above privilege does not apply. Under those circumstances, the applicable statutory privilege is set forth in the second sentence of § 13-90-107(1)(a)(I1), which, as relevant here, states that:

In this instance, during the marriage or afterward, a husband shall not be examined for or against his wife as to any communications intended to be made in confidence and made by one to the other during the marriage without his consent, and a wife shall not be examined for or against her husband as to any communications intended to be made in confidence and made by one to the other without her consent. ©

Under this section, the privilege not to testify may only be exercised by the testifying spouse, who in this case was defendant's wife. The defendant spouse may not invoke the privilege under this section.

A portion of the first degree murder statute, § 18-8-102(4), C.R.S.2001, also abrogates the marital privilege, but it applies only to first degree murder charged under § 18-3-102(1)(f) (knowingly causing the death of a child under the age of twelve). It does not abrogate the marital privilege in felony murder cases, as here, or in cases involving first degree murder after deliberation. Thus, it has no application in this case.

Here, the error by the court and counsel occurred because, read alone, the first sentence of subsection (1)(a)(II) would seem to extinguish the marital privilege with respect to class one, two, or three felonies. It does not do so. The second sentence sets forth the privilege as it applies to such felonies and limits such privilege to the testifying spouse.

The holder of the marital privilege-individually or through his or her counsel-may waive its protections if the privilege holder, by words or conduct, abandons the claim of confidentiality. See Cummings v. People, 785 P.2d 920 (Colo.1990). The party seeking to overcome the privilege has the burden of showing the privilege holder has expressly or impliedly forsaken the claim of confidentiality.

In Cummings v. People, supra, the privilege holder, who was the defendant spouse, successfully moved to prevent his wife from testifying against him at his trial for two counts of first-degree murder. The defendant there relied on § 183-90-107(1)(a)(D). At trial, however, the court ruled that the defendant had impliedly waived the statutory privilege when his counsel, during opening statement, accused the defendant's wife of committing the two murders.

The supreme court upheld the trial court's ruling, explaining that "it would be the ultimate irony if one spouse can, under the guise of 'squealing' on the other, silence the other's response to [the defendant's] charges." Cummings v. People, supra, 785 P.2d at 926 (quoting People v. Worthington, 113 Cal. Rptr. 322, 326, 38 Cal. App.3d 359, 365 (1974)). The Cummings court added: "The holder of the privilege will not be permitted to 'absolve himself [or herself] from liability and at the same time assert the privilege in order to prevent the other party from ascertaining the truth of the claim."" Cummings v. People, supra, 785 P.2d at 926 (quoting Clark v. District Court, 668 P.2d 3, 10 (Colo. 1988)).

Counsel for the privilege holder also may waive the marital privilege by failing to object to the testimony of the adverse spouse. See Burlington Northern R.R. Co. v. Hood, 802 P.2d 458 (Colo.1990)(citing United States v. 468 F.2d 1055, 1057 (Oth Cir.1972)).

In this case, before addressing the issue of privilege, the trial court acknowledged that defendant's wife had a right under the Fifth Amendment to refuse to testify because it might incriminate her. In response, the wife's court-appointed counsel advised the court that he had spoken to his client and the prosecutor and that the People were offering the wife immunity in exchange for her testimony. Counsel presented the court with an application for immunity signed by the district attorney, and at the prosecution's request, the trial court granted the application.

The privilege issue then arose, and the wife's counsel advised the trial court he had spoken to his client and that:

she indicated that she may have a 18-90-107 privilege. After reviewing the statute, I don't believe there is a spousal privilege, Your Honor.

The record makes it clear that the wife's attorney mistakenly believed the marital privilege did not apply because defendant was charged with first degree murder. The prosecutor similarly asserted-also erroneously-that the marital privilege did not apply. Thus, while the trial court required the wife to testify after granting her immunity, the court apparently acted on her counsel's erroneous belief that the privilege statute did not apply to class one, two, or three felonies. The trial court also brought this issue to defense counsel's attention, and counsel did not object.

On appeal, the parties agree, as do we, that this construction of the marital privilege statute was erroneous and that the applicable privilege in this case derives from § 18-90-107(1)(a)(II). The marital privilege applied under that section, but only the witness-spouse could assert or waive the privilege. See People v. Thompson, supra.

The issue, however, on which the People and defendant cannot agree, and which is presented here, is whether defendant is entitled to reversal of his conviction based on this error of law. We conclude there was no plain error that requires reversal.

Because failing to object to testimony by an adverse spouse has been held to waive the privilege, no reversible error occurs where the witness-spouse is allowed to testify after the defendant-spouse fails to object on the grounds of privilege under § 13-90-107(1)(a)(D. Cf. Cummings v. People, supra, 785 P.2d at 926 (citing People v. Odmann, 160 Cal.App2d 693, 325 P.2d 495 (1958)). We similarly conclude that where, as here, the witness-spouse has failed to claim a marital privilege and make a timely objection to his or her own testimony, the witness-spouse has waived the privilege, and on appeal the defendant-spouse may not sue-cessfully contest the issue under § 13-90-107(1)(a)(II). It makes no difference to our analysis in this case that wife's counsel provided inaccurate advice.

Further, because defendant was charged with a class one felony, he was not entitled to raise the marital privilege. Only his wife was entitled to do so under § 13-90-107(1)(a)(II). The record reflects that her counsel raised the privilege issue with the trial court, that she also was formally granted immunity by the district attorney with the permission of the court, and that her counsel allowed her to testify after accepting the grant of immunity. We conclude her counsel impliedly waived the privilege for her by accepting immunity and allowing her to testify.

Accordingly, we reject defendant's contention that the ruling of the trial court permitting his wife to testify against him violated the marital privilege statute and constituted plain error.

IV.

Defendant next contends the search warrant for his home was defective because too much time lapsed between the commission of the crime and the execution of the warrant. We disagree.

The Fourth Amendment of the United States Constitution and article II, section 7, of the Colorado Constitution prohibit the issuance of a search warrant except upon probable cause supported by oath or affirmation particularly describing the place to be searched and the things to be seized. People v. Leftwich, 869 P.2d 1260 (Colo.1994).

In the context of search warrants, probable cause means reasonable grounds to believe that contraband or evidence of criminal activity is located in the area to be searched. People v. Melgosa, 753 P.2d 221 (Colo.1988). The element of time is crucial to determining the presence of probable cause. People v. Montoya, 44 Colo.App. 234, 616 P.2d 156 (1980).

The existence of probable cause is determined by considering the totality of the cireumstances known to the officer at the time of the search. A reviewing court does not analyze the finding of probable cause de nmovo. Instead, it must ensure that a magistrate had a substantial basis for concluding probable cause existed. People v. Leftwich, supra.

Defendant relies on United States v. Van Ert, 350 F.Supp. 1339 (B.D.Wis.1972), and People v. Erthal, 38 Colo.App. 245, 556 P.2d 1228 (1976), aff'd, 194 Colo. 147, 570 P.2d 534 (1977), to support his contention that the warrant lacked probable cause.

In United States v. Van Ert, supra, the federal district court found a search warrant lacked probable cause because investigators had executed it fifty-five days after it was issued. Similarly, in People v. Erthal, supra, the court held a warrant lacked probable cause when almost two months elapsed between the time the investigators observed stolen items on the premises and the issuance of the warrant.

While those cases offer guidance, we are more persuaded by People v. Thrower, 670 P.2d 1251 (Colo.App.1983). There, the police investigated a murder and obtained a warrant to search the defendant's home for a handgun, bullets, bullet shells, and a black shirt allegedly worn the day of the murder. The murder occurred almost two months before the warrant was issued, but the police did not have evidence linking the defendant to the crime until the day before they obtained the warrant.

The items sought in Thrower were similar to the items listed in the warrant here, which defendant now argues could have easily been disposed of between the murder and the issuance of the warrant. However, the panel in Thrower concluded there was probable cause to support the search warrant because it took police almost two months to obtain evidence linking the defendant to the crime scene. People v. Thrower, supra.

Similarly here, the police did not link de fendant to the crime until his parole officer identified him in the video ten days after the body was discovered, and it was only after the police identified defendant as a suspect that they established probable cause to obtain the search warrant for his home. See People v. Thrower, supra. Although the search warrant in this case was issued fourteen days after the police found the victim's body and executed two days later, that was a significantly shorter period than elapsed in Van Ert, Erthal, and Thrower. While the items sought in the warrant were easily disposable, there nevertheless was reason to believe defendant still had them in his possession. The affidavit supporting the warrant stated that the Denver Police Pawn Detail Unit had checked and found no signs that the items had been pawned. The trial court also found it plausible that defendant could have been using the stolen items.

We thus conclude probable cause existed to search defendant's home for the stolen items, despite the passage of more than two weeks between the victim's death and the search.

V.

Defendant's final contention, which the People concede, is that his conviction for robbery should be vacated because it was the underlying felony supporting the felony murder conviction. See People v. Bartowsheski, 661 P.2d 285 (Colo.1983); People v. Jones, 990 P.2d 1098 (Colo.App.1999). We agree, vacate the robbery conviction, and remand for correction of the mittimus to so reflect.

The judgment of conviction for robbery is vacated, and the case is remanded for correction of the mittimus. In all other respects, the judgment is affirmed.

Judge JONES and Judge NIETO concur.