author: Judge PLANK.

text:
    James TERRY and Holly Terry, Plaintiffs-Appellants, v. Patrick J. SULLIVAN, Jr., individually and in his official capacity as Sheriff of Arapahoe County; the Board of County Commissioners of the County of Arapahoe; Debra Vickrey, Polly Page, John Breckney, Marie Mackenzie, and Steve Ward, individually and in their official capacities as Commissioners; and John Does 1 through 5, individually and in their Official capacities as Officers or Deputies of the Arapahoe County Sheriff’s Office, Defendants-Appellees.
    No. 00CA2156.
    Colorado Court of Appeals, Div. II.
    May 23, 2002.
    Certiorari Denied Dec. 16, 2002.

      Pickard & Waters, P.C., Joe Pickard, Doris A. Waters, Denver, Colorado; Stayton & Associates, P.C., Rowe P. Stayton, Aurora, Colorado, for Plaintiffs-Appellants.
    Kathryn L. Schroeder, County Attorney, Robin E. Cochran, Assistant County Attorney, Littleton, Colorado, for Defendants-Ap-pellees.
   Opinion by

Judge PLANK.

In this action to recover damages related to an alleged sexual assault while James Terry (husband) was detained at the Arapahoe County Detention Facility, plaintiffs, husband and Holly Terry (wife), appeal the summary judgment in favor of defendants, Patrick J. Sullivan, Jr. (sheriff), Board of County Commissioners of Arapahoe County (Board), and Commissioners Debra Vickrey, Polly Page, John Breckney, Marie Mackenzie, and Steve Ward. Plaintiffs also appeal the trial court’s order awarding attorney fees and costs. We affirm in part, reverse in part, and remand.

In June 1998, plaintiffs filed a complaint against defendants alleging five claims for relief. Husband asserted the following claims: (1) violation of his civil rights under 42 U.S.C. § 1983; (2) negligence; (3) negligent supervision; and (4) outrageous conduct. Wife asserted a claim for loss of consortium.

Upon defendants’ motion, the action was removed to federal district court. The federal district court dismissed the § 1983 claim and remanded the remaining claims to state court.

Thereafter, defendants filed a motion to dismiss, or in the alternative a motion for summary judgment. The Board argued that the claims against it should be dismissed because it is comprised of separately elected officials and because the Board did not owe a duty to husband while he was an inmate at the detention facility. Additionally, the sheriff argued that a one-year statute of limitations bars all claims against him.

In response, plaintiffs argued that the Board, together with the sheriff, have a duty to manage, administer, and supervise the detention facility, and husband’s claims against the sheriff were tolled for the period during which he was disabled.

The trial court dismissed all of plaintiffs’ claims and awarded attorney fees and costs to defendants.

I.

Plaintiffs contend that the trial court erred in dismissing their claims against the sheriff as barred by the one-year statute of limitations. Because we find that the affidavits plaintiffs submitted in opposition to the motion to dismiss create a genuine issue of material fact with respect to this issue, we agree as to husband’s claims.

Appellate review of a summary judgment is de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, 901 P.2d 1251 (Colo.1995). Summary judgment is proper if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. C.R.C.P. 56; Southard v. Miles, 714 P.2d 891 (Colo.1986). The burden to so demonstrate is on the moving party, and the nonmovant is entitled to all favorable inferences. All doubts must be resolved against the party seeking summary judgment. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, supra.

Pursuant to § 13-80-103(l)(c), C.R.S.2001, all actions against a sheriff must be commenced within one year after the cause of action accrues. However, if a person is “under disability” and without a legal representative, the statute of limitations does not begin to run against that person until either the disability is removed or that person has a legal representative. Section 13-81-103, C.R.S.2001; see also Southard v. Miles, supra.

As pertinent here, under § 13-81-101(3), C.R.S.2001, a “person under disability” includes “a mental incompetent.” In Southard v. Miles, supra, the supreme court stated that in determining whether a person is a “mental incompetent” under § 13-81-101(3), courts must apply the definition of a “mental incompetent” provided in § 27-10.5-135(1), C.R.S.2001. Section 27-10.5-135(1) states, in pertinent part, that a “mental incompetent” is a person who is “mentally ill” or “gravely disabled” as defined in § 27-10-102(5), (7), C.R.S.2001.

As relevant here, a person who is “gravely disabled” “[l]acks judgment in the management of his resources and in the conduct of his social relations to the extent that his health or safety is significantly endangered and lacks the capacity to understand that this is so.” Section 27 — 10—102(5)(a)(II), C.R.S.2001. Additionally, a person is “mentally ill” if that person has “a substantial disorder of the cognitive, volitional, or emotional processes that grossly impairs judgment or capacity to recognize reality or to control behavior.” Section 27-10-102(7), C.R.S.2001; but see Browne v. Smith, 119 Colo. 469, 205 P.2d 239 (1949)(court does not need to adjudge the plaintiff “insane” in order to toll statute of limitations on the basis of mental incapacity).

Whether the statute of limitations bars a particular claim is normally a question of fact for the jury. J.A. Balistreri Greenhouses v. Roper Corp., 767 P.2d 736 (Colo.App.1988). Once the statute of limitations is raised as ⅛ defense, the burden of proof shifts to the party asserting that its application should be equitably tolled. Garrett v. Arrowhead Improvement Ass’n, 826 P.2d 850 (Colo.1992).

Here, it is undisputed that the alleged cause of action against the sheriff accrued on April 24, 1997 and that the complaint was filed on June 24, 1998. Plaintiffs, however, argue that husband was mentally incompetent until at least April 1998 and that therefore, the statute was tolled.

In opposition to the motion for summary judgment, plaintiffs submitted affidavits from husband, wife, and husband’s treating psychiatrist. Husband’s affidavit asserts that (1) because he was psychologically unstable as a result of the attack, he attempted suicide; (2) he was hospitalized for several days; (3) he is psychologically, emotionally, or physically unable to deal with the rape; (4) he suffers from post-traumatic stress disorder, sleeplessness, and flashbacks; (5) he has difficulty maintaining employment and concentrating; and (6) he suffered from nightmares, took long showers, and slept for long periods of time. Wife’s affidavit asserts similar factual allegations.

Husband’s treating psychiatrist asserts that (1) he treated husband since April 27, 1997; (2) he diagnosed husband as suffering from post-traumatic stress disorder and major depression; and (3) husband was disabled as a result of the posttraumatic stress disorder and major depression and was unable to make legal decisions.

The sheriff did not submit affidavits in opposition. Nevertheless, the sheriff argued that husband’s affidavits were insufficient as a matter of law to create a question of fact as to husband’s disability. Further, the sheriff submitted documentation that, in August 1997, husband’s attorneys sent a notice of claim to Arapahoe County, delineating husband’s claims and intention to sue and that, in a related criminal case, husband entered into an agreement, in December 1997, with the district attorney to waive the speedy trial requirement in exchange for a deferred prosecution.

We determine that there exists a genuine issue of material fact as to whether the statute of limitations was tolled because husband was “under disability,” and thus summary judgment on husband’s claim against the sheriff was improper. See Southard v. Miles, supra (record raised genuine issue of fact where affidavits alleged that the plaintiff had moderate to severe brain damage, that he had impaired memory and reasoning abilities, and that he was not capable of making decisions involving business, financial, and legal matters); Doe v. Roe, 191 Ariz. 313, 955 P.2d 951 (1998)(summary judgment on statute of limitation was improper where the plaintiff established that (1) she was unable to function in day-to-day affairs; (2) she experienced suicidal ideation, and she required institutionalization; (3) she had to quit her job and was unable to seek other employment; and (4) she was unable to seek or address the issues with legal counsel).

Relatedly, wife contends that the court erred in dismissing her derivative claim against the sheriff. We disagree.

Loss of consortium is a derivative claim. Lee v. Colorado Department of Health, 718 P.2d 221 (Colo.1986). Derivative claims are subject to the same defenses available to the underlying claim. Nevertheless, derivative claims are separate from the claims of the injured person. Therefore, as a separate claim, loss of ■ consortium is a distinct cause of action. Colorado Compensation Insurance Authority v. Jorgensen, 992 P.2d 1156 (Colo.2000).

We find Elgin v. Bartlett, 994 P.2d 411 (Colo.1999), persuasive on the issue of whether wife’s loss of consortium claim was tolled because of husband’s disability. In Elgin, 994 P.2d at 417, the supreme court held that “the minor’s disability does not toll the statute of limitations applicable to the parents’ separate claims, although such claims are derivative in nature.” In support, the court stated that there is no requirement that these claims be pursued together.

We find no reason to distinguish between spousal derivative claims and parent-child derivative claims. Hence, wife’s loss of consortium claim is barred by the statute of limitations because husband’s disability did not toll the limitations period for her claim. See Emerson v. Southern Railway Co., 404 So.2d 576 (Ala.1981)(limitation period on wife’s loss of consortium claim is not tolled by husband’s disability); Evans v. Dayton Hudson Corp., 234 Cal.App.3d 49, 285 Cal.Rptr. 550 (1991)(same); McCracken v. Walls-Kaufman, 717 A.2d 346 (D.C.App.1998)(same); Cappelluti v. Sckolnick, 207 A.D.2d 763, 764, 616 N.Y.S.2d 398, 398 (1994)(“In cases of infancy or insanity the injured party is under a disability but the party claiming derivatively is not. Hence the person not under a disability must assert his or her claim in a timely manner.”).

II.

Plaintiffs contend that the trial court erred in dismissing their claims against the Board after determining that there was no relationship between the Board and the sheriff and that the Board did not have a legal duty to ensure husband’s safety while he was an inmate at the detention center. We disagree.

For claims of negligence, a plaintiff must demonstrate the existence of a duty owed by the defendant to the plaintiff. A duty may have its source in either legislative enactment or the common law. Generally, whether the defendant owes such a duty is a question of law. Taco Bell, Inc. v. Lannon, 744 P.2d 43 (Colo.1987). Moreover, before a private civil remedy may be recognized for injuries resulting from a breach of obligations legislatively imposed on a governmental entity and unknown at common law, there must be a clear expression of legislative intent. Board of County Commissioners v. Moreland, 764 P.2d 812 (Colo.1988).

Under § 17-26-126, C.R.S.2001, the board of county commissioners has a duty to examine “the jail of its county, its sufficiency, and the management thereof during each session of the board and to correct all irregularities and improprieties therein found.”

Here, the trial court properly determined that the commissioners and the sheriff are separately elected officials and that the Board does not exercise managerial control over either the sheriff or the detention center and its staff. Moreover, § 17-26-126 does not impose a legal duty on the Board to ensure an inmate’s safety against assaults from other inmates, nor does that statute prescribe a civil remedy.

Accordingly, plaintiffs’ claims against the Board were properly dismissed.

III.

Finally, plaintiffs contend that the trial court erred in awarding defendants attorney fees and costs. Specifically, plaintiffs contend that (1) the award conflicts with an earlier order; (2) defendants waived any claim for attorney fees; and (3) the trial court improperly awarded nonallowable expenses. We disagree, but set aside the attorney fee award on behalf of the sheriff.

Section 24 — 10—110(5)(c), C.R.S.2001, provides:

In any action against a public employee in which exemplary damages are sought based on allegations that an act or omission of a public employee was willful and wanton, if the plaintiff does not substantially prevail on his claim that such an act or omission was willful and wanton, the court shall award attorney fees against the plaintiff or the plaintiffs attorney or both and in favor of the public employee.

Here, plaintiffs alleged willful, wanton, and outrageous conduct by the individual defendants and sought exemplary damages. Because all claims against defendants were dismissed, the trial court awarded defendants attorney fees in accordance with § 24-10-110(5)(c).

Nonetheless, plaintiffs contend that the award is erroneous because it conflicts with an earlier order. Specifically, plaintiffs argue that the trial court delayed two weeks in notifying the parties of the order dismissing all claims; during this time, plaintiffs filed a motion to dismiss their claim for exemplary damages; and the trial court dismissed such claims and provided that the parties pay their own attorney fees. We find no error.

While the delay and concurrent motions and order are confusing, plaintiffs’ claims were properly dismissed; therefore, the awai’d was proper. However, because summary judgment on husband’s claim against the sheriff was improper, the award of attorney fees as it relates to the sheriff is set aside.

Additionally, defendants did not waive their right to attorney fees. Plaintiffs’ argument is premised on the assumption that the fees awarded relate to the claim dismissed from federal court. However, defendants sought, and the trial court granted, fees related solely to the state court claims alleging willful, wanton, and outrageous conduct and seeking exemplary damages.

Relatedly, plaintiffs contend that the trial court erred because it awarded nonallowable costs, specifically the costs for two deposition transcripts. Again, we disagree.

A trial court has the discretion to award costs, subject to the parameters set forth in § 13-16-122, C.R.S.2001. An award of deposition costs is within the court’s discretion. See Cherry Creek School District No. 5 v. Voelker, 859 P.2d 805 (Colo.1993). Therefore, we find no error.

The judgment is affirmed as to the claims against the Board and its members and wife’s claim against the sheriff. The judgment is reversed as to husband’s claims against the sheriff, and the case is remanded for further proceedings on those claims. The order awarding fees and costs is affirmed as to the individual members of the Board and reversed as to the sheriff.

Judge JONES and Judge WEBB concur.


source: Caselaw Access Project

author: Judge NEY.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Nathan HARRISON, Defendant-Appellant.
    No. 01CA0147.
    Colorado Court of Appeals, Div. III.
    May 23, 2002.
    Certiorari Denied Dec. 2, 2002.

      Ken Salazar, Attorney General, Katherine A. Hansen, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Lisa A. Polansky, Boulder, Colorado, for Defendan1>-Appellant.

      . Justice COATS does not participate.

   Opinion by

Judge NEY.

Defendant, Nathan Harrison, appeals from the judgment of conviction entered on a jury verdict finding him guilty of manslaughter. He also challenges his sentence in the aggravated range. We affirm.

Defendant was charged with murder after he was involved in the beating of a homeless man who died as a result of the injuries he sustained in the attack. Defendant was convicted of the lesser offense of manslaughter.

I.

On appeal, defendant contends that the trial court committed reversible error in denying his motion to suppress on the basis that his waiver of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), was improper. We find no error.

After the incident, defendant was arrested on an unrelated charge in California. Two Denver police detectives interviewed defendant in California.

The videotape of the interrogation reveals that defendant was advised of his Miranda rights by a detective who spoke extremely rapidly. The detective asked defendant if he understood .each of those rights and defendant answered “yes.”

Defendant was then given an advisement waiver form, which he signed. The detective then apparently read to him, from the waiver form, that “knowing my rights and what I’m doing I now wish to voluntarily talk to you.” The detective again handed defendant the form to sign, and defendant asked, “Now what is this for?” The detective responded that they needed the form to talk to him, and for him to talk to them, regarding the incident.

The detective next asked defendant if he had been threatened by anyone to make the statement, to which he responded “no.” When asked if he was under the influence of drugs, defendant responded “nope.” The detective then asked, “Is this statement being made voluntarily by you, Nathan?” to which he again responded “nope.” However, defendant did not hesitate, but instead continued to talk with the detectives. Throughout his statement, defendant never declined to talk, nor did he request that the interview cease.

After an evidentiary hearing, and a review of the videotaped statement, the trial court denied defendant’s motion to suppress, concluding that defendant had voluntarily, knowingly, and intelligently waived his Miranda rights.

An accused’s statement made during the course of a custodial interrogation is inadmissible unless it is given pursuant to a valid waiver of his or her constitutional rights. People v. Blankenship, 30 P.3d 698 (Colo.App.2000).

The prosecution has the burden to prove by a preponderance of the evidence that the waiver was made: (1) voluntarily, in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception; and (2) knowingly and intelligently. People v. Kaiser, 32 P.3d 480 (Colo.2001). “Only if the totality of the circumstances reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that constitutional rights under Miranda have been validly waived.” People v. Blankenship, supra, 30 P.3d at 705.

The trial court’s findings of historical fact are entitled to deference and will be overturned only if they are not supported by competent evidence, but the court’s ultimate legal conclusion as to the validity of a waiver is subject to de novo review. People v. Blankenship, supra, 30 P.3d at 705.

A.

Initially, defendant argues that neither the oral nor the written advisement of his rights was clear and unequivocal.

Specifically, with regard to the oral advisement, he asserts that the videotape indicates that it was given very rapidly, without pauses or time to reflect. Thus, defendant claims the oral advisement was not adequate. With regard to the written advisement, defendant asserts that there was no evidence in the record that he knew how to read, and he was not given the opportunity to read the advisement before signing it.

A suspect must be warned “in clear and unequivocal terms” of his rights pursuant to Miranda v. Arizona, supra, 384 U.S. at 467-68, 86 S.Ct. at 1624, 16 L.Ed.2d at 720. See, e.g., People v. Mejia-Mendoza, 965 P.2d 777 (Colo.1998).

The People concede, and our review of the videotape reveals, that the oral advisement was done very quickly. In fact, the trial court noted that the detective “whizzed” through the advisement, and it was “hard” to understand. However, we conclude that the oral advisement was complete and was comprehensible. Defendant was asked if he understood each of the rights, and defendant unequivocally answered “yes.”

Furthermore, defendant does not challenge the adequacy of the written advisement form. Rather, he contends that there was no evidence in the record that he could read, and the videotape demonstrated that he did not read it before signing. However, a review of the record reveals no indication that defendant could not read, nor did he indicate that he did not understand what he was signing.

Thus, there is evidentiary support in the record for the trial court’s implicit factual finding that the advisement was adequate.

B.

Defendant next asserts that the waiver of his Miranda rights was not voluntary.

The factors to be considered in a review of the totality of the circumstances surrounding the voluntariness of a Miranda waiver include:

the time between advisement and interrogation; whether the defendant or the interrogating officer initiated the interview; whether and to what extent the interrogating officer reminded the defendant of his or her rights prior to the interrogation by asking if he or she recalled those rights, understood them, or wanted an attorney; the clarity and form of the defendant’s acknowledgement and waiver, if any; and the background and experience of the defendant in connection with the criminal justice system.

People v. Blankenship, supra, 30 P.3d at 705.

1.

Defendant first contends that the waiver was involuntary because it was not an uncoerced choice. In support of this contention, he argues that he was suffering from symptoms of heroin withdrawal and that police used coercive tactics to make him confess. Additionally, he points to the fact that he responded “nope” when asked if he was talking to the detectives voluntarily.

Here, the trial court indicated that it was unimpressed with defendant’s claim that he was suffering from withdrawal. Defendant had been in custody in California for twelve days, and the detective who interrogated him testified that he did not appear to be suffering from withdrawal. Defendant stated that his mind was “pretty clear.”

Moreover, contrary to defendant’s assertion, any alleged coercion during his confession is not evidence that the initial waiver of his Miranda rights was involuntary. See People v. Jiminez, 863 P.2d 981 (Colo.1993)(voluntariness of a statement and voluntariness of a waiver are analytically distinct).

Finally, when the waiver is viewed in context, it is evident that defendant apparently misspoke when responding “nope” to the question whether he was talking to them voluntarily. This is evidenced by his immediate and continued willingness to talk to the detectives. See People v. Interest of J.L.M., 8 P.3d 435 (Colo.l999)(a valid waiver may be inferred from the actions and words of the person interrogated).

2.

Defendant also contends that the waiver was involuntary because he was lacking the requisite level of comprehension as to the nature of the rights and the consequences of waiving them. His argument is based on the detective’s failure to verify his level of education, his knowledge of English, and whether he was suffering from symptoms of withdrawal. Additionally, he argues that his lack of awareness is evidenced by his question, “Now what is this for?” when asked to sign the waiver form.

The circumstances here support a conclusion that defendant adequately comprehended the nature of the rights. Defendant agreed to talk to the detectives when they arrived in California, and he was interrogated directly after the advisement was given. He clearly spoke English, and the record is devoid of any indication that he was mentally impaired. His question regarding the purpose of the waiver form does not indicate that he did not understand the rights to remain silent and to an attorney. And, contrary to defendant’s argument, the record does not indicate that defendant could not read; rather it reveals only that he chose not to read the waiver before signing it.

Thus, under the totality of the circumstances, we conclude that defendant’s waiver of his Miranda rights was made knowingly, voluntarily, and intelligently. Accordingly, we decline to disturb the court’s ruling on his claim of improper waiver. . See People v. Blankenship, supra.

C.

To the extent that defendant argues on appeal that the trial court failed to rule on the voluntariness of the statement itself, as opposed to the waiver of his Miranda rights, we conclude that this issue was raised for the first time in defendant’s reply brief. Thus, we do not address it. See People v. Czemerynski, 786 P.2d 1100 (Colo.1990); People v. Burgess, 946 P.2d 565 (Colo.App.1997).

II.

Defendant next contends that the court abused its discretion in admitting other bad acts evidence, under CRE 404(b), because it was not relevant to establish intent or identity. We find no abuse of the trial court’s discretion.

Prior to trial, the prosecution filed a motion seeking to admit evidence of defendant’s involvement in a beating of another homeless man. Because the assaults on both victims were similar, the prosecution argued that the evidence was admissible to show, defendant’s intent. The court granted the motion, concluding that the evidence was admissible under CRE 404(b), pursuant to the analysis in People v. Spoto, 795 P.2d 1314 (Colo.1990).

When the evidence was admitted at trial, the court instructed the jury three separate times that it was admitted for the limited purpose of establishing identity and intent. Prior to deliberations, the jury was again instructed that the evidence was for that limited purpose. The jurors were also given the standard jury instruction indicating that neither sympathy nor prejudice should influence its decision.

CRE 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Evidence of prior acts is admissible under CRE 404(b) if it: (1) relates to a material fact; (2) has a tendency to make the existence of the material fact more or less probable; (3) is relevant independent of the inference that the defendant has a bad character and acted in conformity with that character in committing the crime; and (4) has probative value that is not substantially outweighed by the danger of unfair prejudice. People v. Spoto, supra.

“A trial court is vested with substantial discretion when determining whether to admit evidence of other acts, and its ruling will be disturbed only when it is demonstrated that the trial court abused that discretion.” Douglas v. People, 969 P.2d 1201, 1204-05 (Colo.1998).

Both assaults were perpetrated by a group of homeless youths who severely beat homeless men and then left them to die. Thus, we find the evidence of the subsequent beating was independently relevant to the material issues of identity and intent. Additionally, we cannot find that the evidence of the second assault created unfair prejudice.

We are not convinced by defendant’s argument that because he told the police that he had asked his friends to stop the beating before the victim was killed, the evidence of the second assault was not relevant and, thus, was offered solely for the inference that he was acting in conformity with his bad character. To the extent that defendant might have indicated that he acted to stop the beating, such evidence was presented to the jurors, who could decide the weight to be given it.

Thus, we find no abuse of the trial court’s discretion in allowing under CRE 404(b) the evidence of defendant’s participation in the second assault.

III.

Defendant also contends that the trial court erred in denying his request for a mistrial on the basis that the jury was improperly exposed to extraneous information. We find no abuse of discretion.

After deliberations had started, the jury sent a note to the court indicating that one of the jurors was approached by defendant’s girlfriend and sole alibi witness, prior to her testimony, and she asked him for spare change. Because she claimed that she needed the money so that “her and her boyfriend could catch a bus,” the juror discussed the incident during deliberations and questioned the witness’s credibility.

The court dismissed the juror and replaced him with the alternate juror. The court subsequently questioned each remaining juror individually in chambers. Each of the remaining jurors, except one, unequivocally indicated that he or she could set aside anything that was said about the incident and deliberate anew solely on the evidence presented in the courtroom.

The trial court found that the incident was very brief and that the jurors expressed, without hesitation, a high level of confidence that they could proceed with the deliberations anew and disregard the extraneous information. The court further found that the uncertainty expressed by one juror was not due to the incident with the witness. Thus, finding that the entire jury panel was untainted, the court denied defendant’s request for a mistrial.

The standard to determine jury taint based on exposure to extraneous information or influences depends on whether the issue is discovered before or after the court has control over the jury. When a defendant contends that his or her defense was prejudiced by juror exposure after the jury has been excused, the trial court applies an objective test, first articulated in Wiser v. People, 732 P.2d 1139 (Colo.1987), to assess the effect of the extraneous information on a typical jury. That test requires “a new trial where there is a reasonable possibility that the verdict was tainted by the introduction of outside information or influences into the jury deliberations.” Wiser v. People, supra, 732 P.2d at 1143. See, e.g., People v. Fox, 862 P.2d 1000 (Colo.App.1993); People v. Staggs, 740 P.2d 21 (CoIo.App.1987). A trial court’s determination of whether a reasonable possibility of taint existed will be overturned only when it constitutes an abuse of discretion. People v. Sherman, 45 P.3d 774, 780 (ColoApp. 2001).

However, when the issue has been presented during trial, and the jury has not been excused, the Wiser test is not applicable. In Harper v. People, 817 P.2d 77 (Colo. 1991), the supreme court analyzed a situation in which the jurors could have been exposed to a potentially prejudicial newspaper article during the defendant’s trial, and the defense raised this issue while the jurors were still deliberating. The Harper court ruled that the reasonable possibility of prejudice test was not suitable for resolving, during the trial, the effect of media reports. Instead, it established a three-step process to assess prejudice.

First, the trial court must determine whether the extraneous information has a potential for unfair prejudice. If it does, the court then must canvass the jurors to find out whether they had learned of the potentially prejudicial information. Finally, it should examine the exposed jurors — outside the presence of the other jurors — to ascertain how much they know of the extraneous information and what effect, if any, it has had on their ability to decide the ease fairly. Harper v. People, supra; See also People v. Ferrero, 874 P.2d 468, 473 (Colo.App.1993); People v. Moore, 701 P.2d 1249 (Colo.App.1985); but see People v. Rachal, 971 P.2d 256 (Colo.App.l998)(finding that the procedures in Harper v. People applicable only to extraneous media reports, and not to prejudicial comments made in the courtroom.)

Here, the note from the jury made it clear that all the jurors were exposed to the extraneous conduct during deliberations. Additionally, because the court individually examined each juror, we conclude that the court implicitly found the extraneous conduct had the potential to be prejudicial. Thus, the record reveals that the trial court properly applied the procedures set forth in Harper v. People, supra, to assess any prejudice.

Inquiries made under Harper v. People, supra, “must be conducted in the framework of the facts of each case, and the trial court has broad discretion in deciding the ultimate issue of whether the [improper material] prejudiced the defendant’s right to a fair trial.” Harper v. People, supra, 817 P.2d at 83-84. Based on this record, we find no abuse of the trial court’s broad discretion in concluding that the jurors would start deliberations anew and would put aside the extraneous information. See also People v. Ferrero, supra (applying an abuse of discretion standard).

Thus we conclude that the trial court properly denied a mistrial.

IV.

Finally, defendant alleges structural error related to the trial court’s sentence in the aggravated range, based upon the court’s unsupported factual finding of a “cooling off period,” under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We find no error.

A division of this court recently determined that Apprendi is not applicable when the defendant receives a sentence to which he or she was exposed by the original charge. See People v. Allen, 43 P.3d 689 (Colo.App.2001). The Allen division ruled that Appren-di does not prohibit “the trial court, in its discretion, to sentence in aggravated or mitigated ranges based on unspecified extraordinary aggravating or mitigating factors or circumstances particularized to the defendant or the offense.” People v. Allen, supra, 43 P.3d at 693; see also People v. Gardner, 55 P.3d 231 (Colo.App.2002). We conclude that the rationale of People v. Allen, supra, .is dispositive of defendant’s argument, and we follow it here.

Furthermore, with regard to defendant’s assertion that the court’s finding of a “cooling off period” was not supported by the evidence, our review of the sentencing ruling-reveals that the actual basis of the court’s decision to sentence defendant in the aggravated range was the horrific nature of the crime. See People v. Flores, 757 P.2d 159 (Colo.App.1988).

Judgment and sentence affirmed.

Judge ROY and Judge DAILEY concur.


author: Judge METZGER.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Steven GRIFFITH, Defendant-Appellant.
    No. 00CA1924.
    Colorado Court of Appeals, Div. I.
    June 6, 2002.
    As Modified on Denial of Rehearing July 18, 2002.
    Certiorari Denied Nov. 18, 2002.
    Ken Salazar, Attorney General, Elizabeth Rohrbough, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Law Firm of Douglas S. Joffe, Michelle L. Lazar, Denver, Colorado, for DefendanG-Ap-pellant.
   Opinion by

Judge METZGER.

Defendant, Steven Griffith, appeals the judgment of conviction entered upon a jury verdict finding him guilty of attempted first degree criminal trespass. We affirm.

The victim testified that she was home alone when defendant, a person unknown to her, came to the door. Defendant pushed on the door screen guard and rattled the door window as if he were trying to push out the screen or the window. The victim yelled at defendant to stop, but defendant continued to push on the door window. The victim then told defendant she was calling the police and brought her portable telephone to the door. Defendant said, “You fucking bitch. I’ll get you for this,” and moved to the side of her house. She called the police, and defendant was soon apprehended nearby.

I.

Defendant first argues the trial court erred by not sua sponte instructing the jury concerning third degree criminal trespass as a lesser included offense of attempted first degree criminal trespass. We disagree.

A defendant is entitled to an instruction on a lesser included offense if there is evidence to support that instruction. Such an instruction is appropriate when a rational basis exists to acquit the defendant of the offense charged, but to convict of the included offense. People v. Ramirez, 18 P.3d 822, 827 (Colo.App.2000).

As relevant here, a lesser offense is “included” in a greater offense when it “is established by proof of the same or less than all the facts required to establish the commission of the offense charged.” Section 18-1 — 408(5)(a), C.R.S.2001. The supreme court has “construed section 18-l-408(5)(a) to require a comparison of the statutory elements of each offense in order to determine whether an offense is within the lesser-included category.” Patton v. People, 35 P.3d 124, 130 (Colo.2001). The court has described this “statutory elements test” as follows:

[I]f proof of the facts establishing the statutory elements of the greater offense necessarily establishes all of the elements of the lesser offense, the lesser offense is included for the purposes of section 18-1-408(5)(a). If, however, each offense necessarily “ ‘requires proof of at least one additional fact which the other does not,’ ” the strict elements test is not satisfied....

People v. Leske, 957 P.2d 1030, 1036 (Colo.1998) (citations omitted; emphasis add-edXquoting People v. Henderson, 810 P.2d 1058, 1063 (Colo.1991), and Wicker v. State, 462 So.2d 461, 462 (Fla.1985)).

Here, defendant was charged with attempted first degree criminal trespass. “A person commits the crime of first degree criminal trespass if such person knowingly and unlawfully enters or remains in a dwelling of another ... with intent to commit a crime therein.” Section 18-4-502, C.R.S. 2001. The attempt statute specifies, in relevant part, as follows:

A person commits criminal attempt if, acting with the kind of culpability otherwise required for commission of an offense, he engages in conduct constituting a substantial step toward the commission of the offense. A substantial step is any conduct, whether act, omission, or possession, which is strongly corroborative of the firmness of the actor’s purpose to complete the commission of the offense.

Section 18-2-101(1), C.R.S.2001.

Defendant now contends the jury should have been allowed to consider third degree criminal trespass, which is defined as follows: “A person commits the crime of third degree criminal trespass if such person unlawfully enters or remains in or upon premises of another.” Section 18-1-504(1), C.R.S.2001.

Third degree criminal trespass is a lesser included offense of first degree criminal trespass. See People v. Marshall, 196 Colo. 381, 586 P.2d 41 (1978)(explaining that the only difference between first degree criminal trespass and third degree criminal trespass is that the former offense requires proof that the “premises” unlawfully entered was a “dwelling”); see also § 18-4-504.5, C.R.S.2001 (defining “premises” in a manner that would necessarily be included within the definition of a “dwelling”).

However, defendant was not charged with first degree criminal trespass; he was charged with attempted first degree criminal trespass.

To prove that a defendant committed attempted first degree criminal trespass, the prosecution is required to prove that the defendant possessed the requisite intent and took a substantial step toward commission of first degree criminal trespass. One way that the prosecution can meet this burden is by proving that the defendant unlawfully entered the real property surrounding the victim’s home. See § 18-4-504.5 (defining “premises” as including “real property”). However, because unlawful entry of the premises is not a necessary element of attempted first degree criminal trespass, the prosecution can also meet this burden of proof in other ways. A defendant can announce his or her criminal intent to commit first degree criminal trespass and can make preparations that constitute a substantial step toward commission of that offense, but that do not necessitate entry upon the subject premises. For example, a defendant could say he or she intended to remove the lock from the door of the victim’s home with a screwdriver, go inside, and assault the victim. The defendant could then take a substantial step toward commission of that offense by purchasing a screwdriver.

In contrast, as § 18-4-504 makes clear, unlawful entry upon the premises is a necessary element of the completed offense of third degree criminal trespass. Therefore, third degree criminal trespass is not a lesser included offense of attempted first degree criminal trespass, and defendant’s claim of error is rejected.

We note that defendant does not contend that he was entitled to an instruction concerning attempted third degree criminal trespass as a lesser included offense. Likewise, defendant does not contend that he was entitled to an instruction concerning third degree criminal trespass as a lesser nonincluded offense of attempted first degree criminal trespass. Accordingly, we do not address these questions.

II.

Defendant also argues the prosecutor committed reversible error in closing argument. While we agree with the People that some of the prosecutor’s remarks were improper, we are not persuaded that reversal is required.

A contention that the prosecutor engaged in improper argument must be evaluated in the context of the argument as a whole and in light of the evidence. Although a prosecutor may argue the facts in evidence and reasonable inferences from those facts, it is improper for a prosecutor to interject his or her personal belief regarding the strength of the evidence. See People v. Serpa, 992 P.2d 682, 685 (Colo.App.1999). However, errors that do not substantially influence the verdict or affect the fairness of the proceedings may be deemed harmless. Crim. P. 52(a).

Here, during closing argument, the prosecutor asserted that defendant had taken a substantial step toward commission of first degree criminal trespass. In support, the prosecutor posed the following rhetorical questions to the jury: “What would happen if that little latch had broken? Do you think he wouldn’t have gotten into that house? Do you think ... he wouldn’t have gone on in?” The trial court sustained defense counsel’s objection. The prosecutor then reformulated her argument and said that the jury could reasonably infer defendant’s intent to enter based on the evidence presented.

During rebuttal, the prosecutor speculated whether defendant would have been so persistent if, instead of the victim, three large men had answered the door. The prosecutor then proceeded to answer her own question: “I don’t think so. I bet he would have left, but that’s for you.” Defense counsel objected to the prosecutor’s statement as an improper expression of personal opinion. The trial court admonished the prosecutor not to “make personal statements.” The prosecutor continued with her argument, stating, “The People believe he would have left.” Defense counsel renewed the objection, and the prosecutor withdrew the statement.

Defense counsel objected again when the prosecutor stated, “[W]e believe we presented [our case] to you beyond a reasonable doubt,” and “[W]e believe he was aware that he was trying to get in the dwelling.” The trial court did not rule on the objection because the prosecutor quickly acknowledged defendant’s objection and clarified that she was making this argument on behalf of “the People.”

We conclude the prosecutor’s rhetorical questions, although based on speculation about events that did not occur, were readily understandable as commentary on the actual evidence presented. The prosecutor’s improper statements regarding what she or the People believed about the evidence were a small part of a lengthy closing argument in which the prosecutor fairly summarized the evidence and emphasized that it was the jury’s prerogative to make an independent determination of the facts. Additionally, because the trial court sustained defense counsel’s objection and/or admonished the prosecutor, or the prosecutor withdrew her remarks, any potential that the improper remarks could influence the jury was significantly diminished. Accordingly, the comments, viewed either individually or in combination, did not rise to the level of reversible error.

The judgment is affirmed.

Judge CASEBOLT and Judge WEBB concur.


author: Judge WEBB.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robin K. CRUSE, Defendant-Appellant. No. 01CA0086.
    Colorado Court of Appeals, Div. I.
    June 20, 2002.
    As Modified on Denial of Rehearing Aug. 1, 2002.

      Ken Salazar, Attorney General, Michelle L. Prince, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Elisabeth Hunt White, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge WEBB.

Defendant, Robin K. Cruse, appeals the judgment of conviction entered upon jury verdicts finding him guilty of unlawfully manufacturing a schedule II controlled substance (methamphetamine and amphetamine), unlawful possession of a schedule II controlled substance (methamphetamine and amphetamine), and possession of drug paraphernalia. Defendant also appeals the sentences imposed in connection with the two controlled substance convictions. We remand for additional findings concerning defendant’s motion to suppress and reject defendant’s other contentions.

The affidavit supporting the search warrant here at issue included the following information.

Defendant was arrested pursuant to an outstanding arrest warrant in an unrelated case. The arresting officer immediately detected an overwhelming odor on defendant’s person that the officer knew to be solely consistent with the manufacture of methamphetamine.

At the detention facility, an investigator examined an article of defendant’s clothing and detected an overwhelming odor that the investigator knew to be solely consistent with the manufacture of methamphetamine. When the investigator met with defendant, the investigator detected this same odor on defendant’s person even though defendant had just showered. The investigator noticed that defendant’s hands were callused with what appeared to be stain or burn marks. Based on his experience, the investigator recognized these stains and burns as the kind of injuries often caused by the high temperatures and abrasive chemicals used to manufacture methamphetamine.

The investigator also knew that, approximately ten months earlier, a search warrant had been executed at a different address where defendant was then living; a search of the residence had resulted in the discovery of a methamphetamine manufacturing operation; and when interviewed, defendant had admitted participation in methamphetamine manufacturing.

Defendant told the investigator the address of the house where he was living, though he was evasive when asked whether anyone else shared the residence. The investigator left defendant at the detention facility and drove to the address that defendant had provided.

Upon arrival, the investigator and a second officer noticed lights on in the basement. They approached the front door and knocked. No one answered. The officers could detect a faint odor consistent with the production of methamphetamine emanating from the front of the house and on the side of the house near an air cooler. The officers walked past the air cooler on their way to a side basement door. The officers knocked on the basement door. Again, no one answered.

The officers then walked to the rear of the property and entered a structure that the investigator described as a “carport.” The investigator observed plastic packaging materials for nasal decongestants on the ground in the garage. The investigator knew that this type of decongestant contained a precursor chemical used in one method of producing methamphetamine and that defendant had previously used this particular method when producing methamphetamine.

A third officer brought a dog onto the property. The dog was trained in the detection of narcotics, including methamphetamine. The dog alerted to the presence of an unknown narcotic odor, although the affidavit does not indicate exactly where this occurred.

Based on this information, a district court judge issued a search warrant for defendant’s residence and his automobile. During the execution of that warrant, police officers discovered methamphetamine along with various chemicals and implements used in its manufacture. Based on that evidence, charges were filed against defendant in this case.

Prior to trial, defendant filed a motion to suppress the seized evidence as the fruit of an unlawful search. At a hearing on that motion, most of the factual assertions set forth in the affidavit supporting the search warrant were undisputed.

As to those facts in dispute, the trial court found that the gate located on the side of the house was open when the officers walked through it to knock on the basement door, the officers were able to detect the faint odor of methamphetamine manufacturing before they reached the basement door, and the investigator’s description of a “carport” in the warrant affidavit was “extremely misleading” because the structure was actually a garage with an open sliding door.

The trial court then concluded that the police officers were lawfully present at defendant’s front door and on the side of the residence leading to the separate entrance for the illuminated basement. The court also concluded that once the officers detected the odor of methamphetamine from these lawful vantage points, the totality of their information constituted probable cause sufficient to authorize the issuance of a search warrant.

The court further concluded that the police officers should have obtained a warrant before subjecting defendant’s residence to a dog sniff, they had unlawfully entered the garage, and they had misleadingly described the location where they discovered the decongestant packaging. However, the court found the dog sniff and the unlawful search of the garage were immaterial because the information from those unlawful searches was not necessary to establish probable cause for the warrant. Accordingly, the trial court denied defendant’s motion to suppress.

I.

Defendant first argues that the trial court erred by denying his motion to suppress. We remand for additional findings.

On review of a trial court’s suppression order:

a “court’s findings of historical fact are entitled to deference by a reviewing court and will not be overturned if supported by competent evidence in the record.” In reviewing a court’s conclusions of law, however, we apply a de novo standard of review to ascertain whether its legal conclusions are supported by sufficient evidence and whether it has applied the correct standard.

People v. Ortega, 34 P.3d 986, 990 (Colo.2001) (citation omitted; quoting People v. Quezada, 731 P.2d 730, 732 (Colo.1987)).

Where a suppression claim involves a mixed question of law and fact that cannot be resolved without additional factual findings, the appellate court should remand for further proceedings. People v. McClure, 190 Colo. 250, 545 P.2d 1038 (1976).

A.

We begin by analyzing whether the information in the search warrant affidavit, other than the information concerning the dog sniff and the search of the garage, was lawfully obtained. Defendant argues that the information concerning the odor which the officers smelled emanating from his house was unlawfully obtained because the officers invaded an area of his curtilage where he enjoyed a reasonable expectation of privacy. We disagree.

The Fourth Amendment protects against police intrusions that abridge a legitimate expectation of privacy. A legitimate expectation of privacy must be determined after examining all the facts and circumstances in a particular case. While the curti-lage surrounding a home may be protected under the Fourth Amendment, a search within the curtilage is lawful if the area’s public accessibility dispels any reasonable expectation of privacy. People v. Shorty, 731 P.2d 679, 681 (Colo.1987).

Here, the record supports the trial court’s finding that the gate was open on the side of the house leading to the basement entrance, and the photographs of the basement entrance, admitted as exhibits at the suppression hearing, show that this entrance was in an area held open to the public. Moreover, the fact that basement lights were on, in combination with defendant’s evasive response concerning whether he shared the premises with another person, support the trial court’s conclusion that the officers had a reasonable basis to walk through the open gate and knock on the basement door.

Thus, we conclude that the officers were in an area where they had a right to be when they smelled the methamphetamine odor. See People v. Baker, 813 P.2d 331, 333 (Colo.1991)(an inquiry regarding the possibility of narcotics offenses is sufficient justification for a police officer to enter the defendant’s property and knock on the door); People v. Shorty, supra, 731 P.2d at 682 (defendant did not have a reasonable expectation of privacy in the area under a doormat in front of a basement apartment that was seven steps below ground level and had a private entrance).

Accordingly, the officers’ detection of the methamphetamine odor, without the assistance of any sense-enhancing device, was not an unlawful search. See People v. Baker, supra.

The People do not challenge the trial court’s conclusion that the police officers’ entry into the garage was an unlawful search. Hence, we will not disturb this determination.

Similarly, the People do not directly challenge the trial court’s conclusion that because the dog sniff was conducted without a warrant, it represented an unlawful search. We note, however, that the trial court’s conclusion would be a substantial extension of ex-feting Colorado precedent. See People v. Haley, 41 P.3d 666, 672 (Colo.2001); People v. May, 886 P.2d 280 (Colo.1994).

We cannot decide the latter issue on the existing record because the trial court made no factual finding of the precise location of the dog sniff. Accordingly, we conclude that on remand the trial court should make a finding as to the exact location of the dog sniff and whether that location was a public access area. See People v. Shorty, supra.

B.

Next, we turn to whether the information in the search warrant affidavit, excluding the information concerning the dog sniff and the search of the garage, established probable cause. We conclude that it did.

Under the Fourth Amendment, a search warrant must be supported by probable cause, which must exist within the four corners of the affidavit. Thus, when a reviewing court examines a search warrant after the fact to determine its validity, the appellate court should assess whether the affidavit provided the issuing judge or magistrate with a substantial basis for concluding that probable cause existed. People v. Randolph, 4 P.3d 477, 481 (Colo.2000).

Here, the investigator’s observations of defendant’s hands and his perception of the distinct methamphetamine smell emanating from defendant’s clothing and person established probable cause to believe that defendant had recently been involved in the manufacture of methamphetamine. The facts that defendant verified he lived at the subject premises, he was known to have recently manufactured methamphetamine at a previous residence, and the police officers smelled the distinct odor of methamphetamine emanating from the premises established probable cause to believe that manufacturing occurred there. In combination, these facts constituted probable cause for issuance of the search warrant.

C.

This determination of probable cause does not end our inquiry, however, because the police sought and obtained the search warrant in this case based partly on information that, according to the trial court, had been unlawfully acquired during the dog sniff and the search of the garage.

The trial court apparently used the analytical framework applicable when a police officer-affiant includes information in a search warrant application that is either intentionally false or in reckless disregard of the truth. In those circumstances, a trial court ruling on a motion to suppress must strike the false or misleading information from the affidavit and then determine whether the remaining statements establish probable cause. See, e.g., People v. Kazmierski, 25 P.3d 1207, 1210 (Colo.2001). However, this analysis is not adequate where, as here, police officers conduct a partially unlawful search of the premises and then include information obtained from that search in the application for a warrant to search the same premises.

In People v. Schoondermark, 759 P.2d 715 (Colo.1988), the supreme court rejected inevitable discovery analysis and, relying on Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988), explained that the independent source doctrine is the correct approach. Murray mandates a two-part inquiry:

The ultimate question ... is whether the search pursuant to warrant was in fact a genuinely independent source of the information and tangible evidence at issue here. This would not have been the case if the [officers’] decision to seek the warrant was prompted by what [they] had seen during the initial entry, or if information obtained during that entry was presented to the Magistrate and affected his decision to issue the warrant.

Murray v. United States, supra,, 487 U.S. at 542, 108 S.Ct. at 2536, 101 L.Ed.2d at 483-84. But see People v. Hebert, 46 P.3d 473 (Colo.2002)(upholding a search warrant because the information in the affidavit sufficed to establish probable cause after redaction of unlawfully obtained information, without remanding for determination of the role this information played in the decision to seek the warrant); People v. Alvarado, 31 P.3d 145, 146 (Colo.2001)(per curiam)(same).

1.

In Schoondermark, the supreme court addressed the first question of the Murray analysis and remanded for additional findings as to whether the police officers’ observations during their illegal entry affected their decision to seek a warrant. The court directed that:

[i]n making these findings the trial court should allow the parties an opportunity to supplement the existing record with additional evidence, and the People must bear the burden of establishing by a preponderance of the evidence that the officers would have sought the warrant even absent the information gained by the initial illegal entry.

People v. Schoondermark, supra, 759 P.2d at 719.

Remand also was the outcome in Murray v. United States, supra, which the Supreme Court has not revisited. A number of federal district courts have considered on remand whether officers’ decisions to seek search warrants were tainted by their observations during earlier unlawful searches. See, e.g., United States v. Arias, 992 F.Supp. 832 (S.D.W.Va.l997)(finding that officers manufactured exigent circumstances in order to conduct an illegal search before obtaining a warrant to search the same premises), affd, 176 F.3d 476 (4th Cir.l999)(subsequent appeal); United States v. Hill, 906 F.Supp. 570 (D.Or.l995)(finding that officers would have sought a warrant even if they had not discovered evidence unlawfully), affd, 101 F.3d 706 (9th Cir.1996); see also United States v. Markling, 7 F.3d 1309, 1315-16 (7th Cir.l993)(discussing policies underlying the independent source doctrine and remanding for trial court findings whether an illegal search of defendant’s briefcase contributed to officer’s decision to obtain a warrant for defendant’s hotel room).

Nevertheless, defendant contends the People waived any argument based on the independent source doctrine because they did not explicitly raise it in the trial court. However, under our de novo review of legal conclusions, People v. Ottega, supra, we must apply the correct standard. See People v. Schoondermark, supra, 759 P.2d at 718 (relying sua sponte on independent source doctrine rather than the inevitable discovery argument advanced by the People); see also People v. Saint-Veltn, 945 P.2d 1339 (Colo.1997). However, if our analysis went no further than that of the trial court, then denial of defendant’s suppression motion would be affirmed. Finally, we are satisfied that the People preserved the issue in the trial court by arguing that the police officers had intended to obtain a warrant before they arrived at the premises and that the lawfully obtained information in the warrant affidavit established probable cause.

Nevertheless, the existing record lacks a trial court finding whether the police officers’ observations of the decongestant packaging during the illegal entry of the garage or the results of the dog sniff affected their decision to seek a warrant. Hence, we conclude that remand is necessary for further findings on these questions, according to the procedures outlined in Schoondermark, to determine whether “a later, lawful seizure is genuinely independent of an earlier, tainted one.” Murray v. United States, supra, 487 U.S. at 542, 108 S.Ct. at 2535, 101 L.Ed.2d at 483.

2.

The record also lacks any finding concerning the second Murray question: whether the unlawfully obtained information included in the affidavit affected the district court’s decision to issue the search warrant. In Schoondermark, the supreme court did not remand for findings on this issue because it was “clear that the warrant was not based upon any information obtained during the initial entry into the house.” People v. Schoondermark, supra, 759 P.2d at 719; see People v. Morley, 4 P.3d 1078, 1081 (Colo.2000)(same).

By contrast, in People v. Sprowl, 790 P.2d 848, 849 (Colo.App.1989), a division of this court analyzed an affidavit under the second question of the Murray analysis, implicitly treating it as a question of law. The division concluded that the officers’ observations made during the initial illegal search necessarily affected the court’s decision to issue a search warrant for the premises because, disregarding the illegally obtained information in the warrant affidavit, the remaining lawfully obtained information did not establish probable cause. See also People v. Hebert, supra, 46 P.3d at 481 (“de novo review is the proper standard for an appellate court to apply to determine whether a redacted affidavit is sufficient to establish probable cause”).

Following the approach in Sprowl and Hebert, we conclude that the question whether illegally obtained information included in a warrant affidavit affected the issuing court’s decision is a question of law.

Here, because as explained above, the lawfully obtained information in the warrant affidavit established probable cause, we conclude that the court would have issued the search warrant even if presented with an affidavit omitting the information about the unlawful search of the garage and the dog sniff. See Crim. P. 41(d) (“[i]f the judge is satisfied that grounds for the application exist, or that there is probable cause to believe that such grounds exist, he shall issue a search warrant”; emphasis added); 3 Wayne R. LaFave, Search and Seizure § 11.4(f), at 290-91 (3d ed.l996)(summarizing federal circuit court decisions to demonstrate that, under Murray, the appropriate method for determining whether the decision to issue the warrant was unaffected by the illegally obtained information is to excise that information from the warrant and determine whether the remaining information establishes probable cause, rather than to inquire into the thought processes of the issuing magistrate).

Accordingly, on remand the trial court need not make any additional findings with respect to the second question of the Murray analysis.

We address defendant’s remaining contentions to avoid another appeal on those issues, in the event that the trial court again denies the motion to suppress.

II.

Defendant contends that his conviction for manufacture of methamphetamine was not supported by sufficient evidence. We are not persuaded.

When reviewing for sufficiency, we consider the evidence in the light most favorable to the People, People v. Bennett, 515 P.2d 466 (Colo. 1973), giving the People the benefit of every reasonable inference. People v. Cole, 926 P.2d 164 (Colo. App. 1996).

Applying this standard, and in light of the fact that both the essential ingredients to defendant’s manufacturing process and d-methamphetamine in solution were found on the premises, we reject defendant’s challenge to the sufficiency of the evidence.

Ill

Finally, defendant argues that the trial court abused its discretion in sentencing him to sixteen years’ imprisonment. We do not agree.

Sentencing is a discretionary decision that should not be overturned, absent an abuse of discretion. People v. Luu, 983 P.2d 15 (Colo. App. 1998). Here, the trial court considered relevant factors, § 18-1-409, C.R.S. 2001, no one of which controls. People v. Wilson, 599 P.2d 970 (Colo. App. 1979).

The court acknowledged mitigating factors, but then imposed a sixteen-year sentence, which was within the statutorily prescribed range for an “extraordinary risk of harm” crime. Sections 18-18-405(l)(a); 18-1-105(V)(A); 18-l-105(9.7)(a); and 18-1-105(9.7)(b)(XI). Neither the People’s request for a twelve-year sentence, nor the trial court’s reference to defendant being on bond for another drug offense at the time of the crimes charged, shows that the court abused its considerable sentencing discretion, especially given the seriousness of and harm to society caused by the crime of manufacturing methamphetamine.

Although defendant does not expressly request a proportionality review, he cites People v. Cohen, 617 P.2d 1205,1207 (Colo. 1980) for the proposition that penalties must be “proportionate to the seriousness of offenses.” Hence, to avoid the possibility of a later appeal on this issue, in light of Close v. People, 48 P.3d 528 (Colo.2002), we address proportionality using the criteria set forth in that decision.

Because defendant was convicted of a serious offense, we proceed directly to the second part of an abbreviated proportionality review: a consideration of the harshness of the penalty. The legislatively mandated sentencing range for grave and serious crimes will be constitutionally proportionate in almost every instance. Close v. People, supra.

The determination of whether a sentence is constitutionally proportionate presents a question of law. People v. Anaya, 894 P.2d 28 (Colo. App. 1994). Here, given the seriousness of defendant’s crimes and the necessary deference to legislatively established sentences, we conclude that the sentence of sixteen years was proportionate, and need not engage in an extended proportionality review.

Accordingly, we reject defendant’s contention that he received an excessive sentence.

The case is remanded for further proceedings consistent with the views expressed in this opinion.

Judge METZGER and Judge CASEBOLT concur.


author: Judge NIETO.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Carroll FELGAR, Defendant-Appellant.
    No. 00CA1760.
    Colorado Court of Appeals, Div. III.
    July 5, 2002.
    Rehearing Denied Oct. 24, 2002.

      Ken Salazar, Attorney General, Peter J. Cannici, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Ann M. Aber, Deputy State Public Defender, Denver, Colorado, for Defendants Appellant.
   Opinion by

Judge NIETO.

Defendant, Carroll Felgar, appeals the judgment of conviction entered upon jury verdicts finding him guilty of two counts of fraud by check and one count of acting as a small-volume dealer of livestock without a license. We affirm in part and reverse in part.

Defendant was in the business of buying and selling horses. He would pay for his purchases with a check drawn on his personal account. In July 1999, he wrote two cheeks to a consignment firm in payment for a horse and equipment. The cheeks, although presented twice for payment, did not clear the bank because of insufficient funds in defendant’s account.

At trial, defendant admitted writing the cheeks, but denied that he had intended to defraud. He further testified that he did not realize that a license was required to sell livestock.

I.

Defendant contends that the trial court erred in its instructions to the jury on the fraud by check charges. He does not challenge the constitutionality of § 18-5-205(8), C.R.S.2001, but rather ar¿ues that the trial court, relying on that statute, erred in instructing the jury that it could presume that he had knowledge of insufficient funds in his account if there were insufficient funds to pay the checks within thirty days after they were issued. He asserts that this instruction created an improper mandatory presumption, and therefore his convictions for fraud by check must be vacated. We agree.

The prosecution bears the burden of establishing every essential element of an alleged offense beyond a reasonable doubt. Griego v. People, 19 P.3d 1 (Colo.2001).

A mandatory presumption shifts to the party against whom it operates either the burden of producing evidence or the burden of persuasion, and if that party fails to satisfy this burden, the trier of fact must accept the presumed fact provided it finds the predicate fact. In contrast, a permissive presumption, which is also described as a permissive inference, does not shift any burden to the opposing party, but instead allows the trier of fact to find the inferred fact from the proof of the predicate fact. In criminal cases, to avoid issues of constitutional dimension, presumptions are ordinarily construed to raise only permissive inferences. People in re R.M.D., 829 P.2d 852 (Colo.1992). A permissive inference or presumption can pass constitutional muster, but a mandatory or mandatory rebuttable presumption violates due process of law. Jolly v. People, 742 P.2d 891 (Colo. 1987).

Because of the serious constitutional implications in the use of presumptions, courts generally construe criminal statutes as raising permissive inferences only. Such construction complies with the basic principle that if a statute will bear different interpretations, only one of which is constitutional, it should be construed in accordance with the constitutional interpretation. Jolly v. People, supra.

Here, the trial court’s elemental instruction to the jury concerning fraud by check included the element: “Knowing [he] had insufficient funds with [the bank].” The court also gave the following instruction:

SPECIAL RULE
The prosecutor must establish the required culpable mental state. However, for the purposes of this offense, the issuer’s knowledge of insufficient funds is presumed, except in the case of a postdated check, if he has insufficient funds upon deposit with the bank to pay the check on presentation within thirty days after issue.

The special rule instruction tracks part of the language of § 18-5-205(8), which provides:

This section does not relieve the prosecution from the necessity of establishing the required culpable mental state. However, for purposes of this section, the issuer’s knowledge of insufficient funds is presumed, except in the case of a postdated check or order, if: ...
(b) He has insufficient funds upon deposit with the bank or other drawee to pay the check or order, on presentation within thirty days after issue.

An instruction that tracks the language of a statute is ordinarily sufficient. People v. James, 40 P.3d 36 (Colo.App.2001). However, instructing the jury in the precise language of § 18 — 5—205(8)(b) fails to convey the meaning of the statute when, as explained below, it is properly construed as creating a permissive inference.

It is presumed that, in enacting legislation, the General Assembly intends statutes to conform to federal and state constitutional requirements. Section 2-4-201, C.R.S.2001. If a statute is susceptible of both constitutional and unconstitutional interpretation, we must adopt a constitutional construction if it is reasonably consistent with legislative intent. People in re R.M.D., supra.

We must construe statutes to give effect to legislative intent and interpret them as a whole so as to give effect to all parts. State v. Nieto, 993 P.2d 493 (Colo.2000).

Reading § 18-5-205(8) as a whole, it is clear that the General Assembly did not intend to create a mandatory presumption. The first sentence in the section states that it does not relieve the prosecution of its burden of proof. This sentence would be rendered meaningless if the rest of the section created a mandatory presumption that relieved the prosecution of part of its burden of proof.

Therefore, we construe § 18-5-205(8) to create a permissive inference that a defendant has knowledge of insufficient funds if he has insufficient funds in the bank to pay a check that is presented for payment within thirty days after issue.

Here, the special rule instruction was defective because it did not make clear that evidence of defendant’s insufficient funds in the bank created only an allowable inference that the jury could use, but was not required to use, in determining whether the prosecutor had proved the “knowing” element of the fraud by cheek statute. The jury could have viewed the instruction as a mandatory presumption or a mandatory rebuttable presumption. In either case, it violates due process of law by shifting the burden of producing evidence or the burden of persuasion on an essential element of the crime. See Jolly v. People, supra (holding that instruction that stated a permissible inference as a mandatory presumption constituted reversible error); see also CJI-Crim. 37:02 (Supp.l993)(a permissible inference of knowledge instruction based on the statute addressed in Jolly).

The special rule instruction, while not part of the elemental instruction, had the effect of removing the “knowing-” element by creating a mandatory presumption that defendant knew he had insufficient funds to pay the check. Such an instruction is equivalent to misdescribing or omitting an element, Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), and, as stated above, violates due process.

An instruction that omits or mis-describes an element is subject to harmless error analysis. The test for determining whether such an instruction is harmless is whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict. Neder v. United States, supra; Griego v. People, supra.

Here, the special rule instruction failed to tell the jurors that they were not required to make the inference of knowledge based on the predicate fact. Rather, it told them that for the offense of fraud by check, “knowledge of insufficient funds is presumed” if the predicate fact is established. The common definition of “presume” in this context is “to accept as true or credible without proof or before inquiry.” Webster’s Third New International Dictionary 1796 (1986). Thus, without further instruction on the proper use of the permissive inference, the jury was told in effect that the knowledge element was established without further proof if the predicate fact was established.

The other instructions concerning the burden of proof did not cure this defect. Those instructions are couched in general terms, while the special rule instruction is applicable to “this offense.” Therefore, the jury reasonably could have concluded that the “special rule” prevailed over the general rules.

The prosecution also argues that the record as a whole contains overwhelming evidence that defendant knew he had insufficient funds in the bank to pay the checks. Our review of the record does not lead us to this conclusion. The evidence raised a question of fact as to defendant’s knowledge, and the question should have been submitted to the jury.

Under these circumstances, we cannot conclude beyond a reasonable doubt that the erroneous instruction did not contribute to the verdict. Accordingly, the judgment of conviction on counts two and three cannot stand.

II.

Defendant also contends that the evidence is insufficient to support his conviction for acting as a small-volume dealer of livestock without a license because the prosecution failed to establish the venue for the offense. We do not agree.

A.

Defendant argues that the prosecution’s failure to prove the venue for this offense requires that his conviction be vacated. We reject this contention.

In relevant part, § 18-1-202(11), C.R.S. 2001, provides:

Proof of the county in which the offense occurred ... shall not constitute an element of any offense and need not be proven by the prosecution at trial unless required by the statute defining the offense. Any challenge to the place of trial pursuant to this section shall be made by motion in writing no later than twenty days after arraignment, except for good cause shown.... Failure to challenge the place of trial as provided in this subsection (11) shall constitute a waiver of any objection to the place of trial.

Section 12 — 16—115(l)(e), C.R.S.2001, which sets forth the elements of acting as a small-volume dealer of livestock without a license, does not require proof of venue as an element of the offense. Therefore, the prosecution was not required to prove venue.

Further, defendant failed to challenge venue as required by the statute. Thus, defendant has waived any objection he may have had to venue. See People v. Joseph, 920 P.2d 850 (Colo.App.l995)(venue provisions are solely for the defendant’s benefit and may be waived).

B.

Defendant also argues that he cannot have waived any objection to venue because § 18-1-202(11), is unconstitutional. However, because the constitutionality of § 18-1-202(11) was not raised in the trial court, we decline to address it on appeal. See People v. Lesney, 855 P.2d 1364 (Colo. 1993); People v. Cagle, 751 P.2d 614 (Colo. 1988).

The judgment is reversed as to the convictions on the fraud by check counts. The judgment is affirmed in all other respects.

Judge JONES and Judge ROTHENBERG concur.


text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee and Cross-Appellant, v. Leo APODACA, Defendant-Appellant and Cross-Appellee.
    No. 00CA1789.
    Colorado Court of Appeals, Div. IV.
    July 5, 2002.
    Certiorari Denied Dec. 16, 2002.

      Ken Salazar, Attorney General, Lauren Edelstein-Park, Assistant Attorney General, Denver, Colorado; Jeanne M. Smith, District Attorney, Gordon R. Denison, Assistant District Attorney, Colorado Springs, Colorado, for Plaintiff-Appellee and Cross-Appellant.
    Leslie A. Goldstein, Steamboat Springs, Colorado, for Defendant-Appellant and Cross-Appellee.

      . 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 NEY.

Defendant, Leo Apodaca, appeals the judgment of conviction entered upon a jury verdict finding him guilty of sexual assault on a child. The People cross-appeal the sentence imposed on that conviction. We affirm the judgment, vacate the sentence, and remand for resentencing.

The victim, a nine-year-old girl, testified that she went to the basement of her house because she was looking for her mother. Defendant, who lived in the basement, lifted the victim up and inserted his fingers into her vagina.

I.

Defendant argues that the trial court abused its discretion by admitting evidence of a similar transaction for the limited purposes of proving identity. We disagree.

A trial court is granted substantial discretion to decide questions concerning the admissibility of evidence. This rule extends to similar transaction evidence. Indeed, in § 16-10-301, C.R.S.2001, the General Assembly has in effect expressed a policy judgment that similar transaction evidence should be more readily available in sexual assault cases. Consequently, absent a showing that the court has clearly abused its discretion, we must affirm its evidentiary ruling. People v. Duncan, 33 P.3d 1180, 1183 (Colo.App.2001).

In a case involving a sexual assault upon a child, evidence of prior similar acts committed by the defendant may be admissible pursuant to § 16-10-301 and CRE 404(b) when offered to show motive, opportunity, intent, preparation, plan, knowledge, identity, or the absence of mistake or accident.

For prior acts evidence to be admissible: (1) it must relate to a material fact; (2) it must be logically relevant in that it makes the existence of a material fact more or less probable than it would be without the evidence; (3) its logical relevance must be independent of the prohibited inference that the defendant has a bad character; and (4) the probative value of the evidence must not be substantially outweighed by the danger of unfair prejudice. People v. Spoto, 795 P.2d 1314,1320 (Colo.1990).

In reviewing the admission of other act evidence, we must assume the maximum probative value a reasonable fact finder might give the evidence and the minimum unfair prejudice to be reasonably expected from its introduction. People v. Nuanez, 973 P.2d 1260,1263 (Colo.1999).

Here, the prosecution sought to introduce evidence of an incident of abuse that occurred approximately eight years earlier. In that case, the victim, a fifteen-year-old girl who had known defendant for about one year, accepted a ride in his car. Defendant touched the victim’s breast, attempted to kiss her breast, and reached under her shorts and inserted his fingers into her vagina.

The prosecution argued that, because of the similarities between the two, the evidence of the earlier assault would be relevant to establish identity, modus operandi, and the absence of mistake or accident as to the charged assault. The trial court analyzed the evidence under People v. Spoto, supra, and agreed with the prosecution.

At trial, the prior act evidence was introduced only to prove identity, and the trial court instructed the jury that this was the only purpose for which the evidence could be considered. The trial court repeated this admonition in a written instruction submitted to the jury after the close of the evidence.

Based on our review of the record, we perceive no abuse of discretion in the trial court’s decision to admit evidence of the earlier assault. The other act evidence had logical relevance to the material fact of identity, which was independent of the prohibited inference that defendant has a bad character, because, in both eases, defendant took advantage of his acquaintance with a young girl and committed nonconsensual digital penetration while the victim remained clothed. We are satisfied that, in concluding that this probative value was not substantially outweighed by the danger of unfair prejudice, the trial court gave due consideration to the factual distinctions and the time elapsed between the two incidents. Further, any prejudice to defendant was substantially ameliorated by the trial court’s limiting instruction.

II.

On cross-appeal, the People argue that the trial court erroneously concluded that defendant could not be sentenced under the Colorado Sex Offender Lifetime Supervision Act of 1998 (the Act) because he was also subject to sentencing as an habitual criminal. We agree and therefore vacate defendant’s sentence and remand for resen-tencing.

Defendant was convicted of sexual assault on a child in violation of § 18-3-405(1), C.R.S.2001, a class four felony that carries a presumptive sentencing range of two to six years imprisonment. Sections 18-1-105(l)(a)(V)(A), 18-3-405(2), C.R.S.2001.

In addition, defendant was adjudicated an habitual criminal, based on two prior felony convictions within the previous ten years, under the following provision:

Every person convicted in this state of any class 1, 2, 3, 4, or 5 felony who, within ten years of the date of the commission of the said offense, has been twice previously convicted ... of a felony ... shall be adjudged an habitual criminal and shall be punished for the felony offense of which such person is convicted by confinement in a correctional facility for a term of three times the maximum of the presumptive range pursuant to section 18-1-105, C.R.S., for the class of felony of which such person is convicted.

Section 16-13-101(1.5), C.R.S.2001.

In this case, it is undisputed that the habitual criminal sentence would be eighteen years, notwithstanding that defendant also was found guilty of a crime of violence count under § 16-ll-309(2)(b)(I), C.R.S.2001. See People v. Hoefer, 961 P.2d 563, 568-69 (Colo.App.1998)(habitual criminal sentencing statute preempts crime of violence sentencing statute). And contrary to the trial court’s calculation of a sentence of twenty-four years, the extraordinary risk of harm enhancement is inapplicable to this offense committed after November 1, 1998. See § 18-l-105(9.7)(b)(IV), C.R.S.2001.

Further, we conclude, contrary to the trial court’s ruling, that the habitual criminal sentencing statute and the Act can be reconciled and that defendant is therefore subject to sentencing under both.

The Act provides, in relevant part, as follows:

(l)(a) Except as otherwise provided [concerning crimes of violence, habitual sex offenders against children, HIV-positive defendants, and probationary sentences], the district court having jurisdiction shall sentence a sex offender to the custody of the department for an indeterminate term of at least the minimum of the presumptive range specified in section 18-1-105, C.R.S., for the level of offense committed and a maximum of the sex offender’s natural life,
(b) If the sex offender committed a sex offense that constitutes a crime of violence, as defined in section 16-11-309, the district court shall sentence the sex offender to the custody of the department for an indeterminate term of at least the midpoint in the presumptive range for the level of offense committed and a maximum of the sex offender’s natural life.

Section 16-13-804, C.R.S.2001 (emphasis added). For purposes of this statute, defendant is a “sex offender” because he was convicted of an enumerated sex offense. See § 16-13-803(4), (5)(a), C.R.S.2001. Because defendant was also convicted of a crime of violence, § 16-13-804(l)(b) of the Act requires a sentence of at least four years (the midpoint in the class four presumptive range) with a maximum term of defendant’s natural life.

The Act specifically explains that when a defendant is also convicted as an habitual sex offender against children, “the district court shall sentence the sex offender to the custody of the department for an indeterminate term of at least three times the upper limit of the presumptive range for the level of offense committed and a maximum of the sex offender’s natural life.” Section 16-13-804(l)(c), C.R.S.2001. However, the Act does not contain a similar provision explaining how it is to be applied when, as here, the defendant is convicted under the general habitual criminal statute. Thus, this question must be answered by means of statutory interpretation.

Our fundamental responsibility when interpreting a statute is to give effect to the General Assembly’s purpose or intent in enacting the statute. We begin with the plain language of the statute itself. If the statutory language unambiguously sets forth the legislative purpose, we need not apply additional rules of statutory construction to determine the statute’s meaning. Conversely, if the statute is ambiguous or it appears to conflict with other provisions, then we may rely on other factors, such as legislative history, prior law, the consequences of a given construction of the statute, and the end to be achieved by the statute, to determine its meaning. Martin v. People, 27 P.3d 846 (Colo.2001).

We assume that the General Assembly intended that the entire statute be effective, and we must read and consider the statutory scheme as a whole to give consistent, harmonious, and sensible effect to all its parts. If possible, we must reconcile statutes governing the same subject. In interpreting a comprehensive legislative scheme, we must construe each provision to further the overall legislative intent behind the statutes. Martin v. People, supra.

We presume that the General Assembly intends a just and reasonable result when it enacts a statute, and we will not follow a statutory construction that defeats the legislative intent or leads to an unreasonable or absurd result. People v. Gholston, 26 P.3d 1, 7 (Colo.App.2000).

Here, nothing in the plain language of § 16-13-804(l)(a) of the Act indicates how that section is to be coordinated with § 16-13-101(1.5), the general habitual criminal sentencing statute. The legislative history of the Act does not shed any light upon the question. See Hearings on H.B. 98-1156 before the Senate Judiciary Committee (Apr. 29,1998) and the House Judiciary Committee (Jan. 27, 1998), 61st General Assembly, Second Session. The legislative history of the 1998 amendment adding § 16-13-804(l)(c) is similarly unilluminating. See Hearings on H.B. 00-1239 before the Senate Judiciary Committee, 62nd General Assembly, Second Session (Mar. 8, 2000).

The parties’ opposing explanations for the General Assembly’s decision to enact that amendment without also enacting a similar amendment referring to § 16-13-101(1.5) are unconvincing.

Thus, we reject the People’s suggestion that the General Assembly perceived a conflict between §§ 16-13-804(l)(a) and 18 — 3— 412(2) that it did not perceive between §§ 16-13-804(l)(a) and § 16-13-101(1.5), as well as defendant’s suggestion that the General Assembly intended habitual criminals to serve the more severe sentence required by the habitual criminal sentencing statute rather than what he views as the less severe indeterminate life sentence required under the Act. See People v. Montgomery, 737 P.2d 413, 416-17 (Colo.l987)(a lengthy determinate sentence under the habitual criminal sentencing statute is not a more severe sentence than a life sentence with discretionary parole because it is possible that the defendant will be denied parole and serve the entire sentence). We cannot say that the absence of a provision in § 16-13-804 reconciling it with § 16-13-101(1.5) demonstrates that the General Assembly intended either to promote or to prohibit such a reconciliation.

Nevertheless, we conclude that the two statutes can be interpreted in a manner that is consistent with their respective purposes. The eighteen-year sentence required by the habitual criminal sentencing statute is “at least” as long as the four-year minimum required by § 16-13-804(l)(a) of the Act. Thus, a sentence of eighteen years to defendant’s natural life would be lawful under the Act. See People v. Smith, 29 P.3d 347 (Colo. App.2001). Such an indeterminate sentence would also be lawful under the habitual criminal sentencing statute, § 16-13-101(1.5), unless that statute’s specification of a determinate length sentence is construed as establishing a statutory maximum. We conclude that interpreting the habitual criminal statute as establishing a maximum sentence would lead to an absurd result.

The habitual criminal sentencing statute was enacted for the purpose of increasing the punishment for repeat offenders. Gimmy v. People, 645 P.2d 262, 266 (Colo.1982). Consistent with this purpose, the habitual criminal sentencing statute has been interpreted as preempting any otherwise applicable sentencing statute that would result in a less severe sentence. See People v. Hoefer, supra; People v. Pena, 794 P.2d 1070, 1071-72 (Colo.App.1990), overruled on other grounds by Robles v. People, 811 P.2d 804, 807 (Colo.1991); People v. Reyes, 728 P.2d 349 (Colo. App.1986). We are unaware of any decision interpreting the habitual criminal sentencing statute as establishing the maximum possible sentence where the defendant is also subject to sentencing under a second statute authorizing a greater maximum sentence. We decline to adopt such a construction in this case because it would flout the central purpose of the habitual criminal sentencing statute.

Such a construction would also be inconsistent with the central purpose of the Act to provide for the lifetime supervision and treatment of sex offenders. See § 16 — 13— 801, C.R.S.2001 (legislative declaration). The Act accomplishes this goal by subjecting sex offenders to indeterminate sentences to imprisonment that are not deemed to be discharged if the offender is released for an indeterminate period of parole. Section 16-13-806, C.R.S.2001. Clearly, this objective would be frustrated if habitual criminals, such as defendant, were exempt from the Act and only subject to incarceration for a definite term of years followed by definite period of mandatory parole.

Where, as here, a sex offender is also convicted as an habitual criminal, there is only one way to interpret §§ 16-13-804(l)(a) and 16-13-101(1.5) that is consistent with the language and goals of both statutes: in such a situation, the trial court must impose a sentence to the custody of the DOC for an indeterminate term of at least three times the upper limit of the presumptive range for the level of offense committed and a maximum of the sex offender’s natural life. This interpretation harmonizes the two sections, and, to the extent that it resolves a conflict between them, it is consistent with the maxim that the specific statute limited to sexual offenders prevails over the general habitual criminal statute. See § 2-4-205, C.R.S.2001; Martin v. People, supra, 27 P.3d at 852.

Accordingly, we conclude the correct sentence in this case is an indeterminate sentence of eighteen years to defendant’s natural life.

The judgment is affirmed. The sentence is vacated, and the case is remanded for resentencing consistent with the views expressed in this opinion.

Justice ERICKSON and Judge RULAND, concur.