author: Judge DAVIDSON.

text:
    INTEGRA FINANCIAL, INC., Plaintiff-Appellant, v. GRYNBERG PETROLEUM COMPANY, Defendant-Appellee.
    No. 01CA0992.
    Colorado Court of Appeals, Div. IV.
    Oct. 10, 2002.
    Rehearing Denied Nov. 14, 2002.
    Certiorari Denied Aug. 18, 2003.
    Wolf & Slatkin, P.C., Raymond P. Mickle-wright, Denver, Colorado, for Plaintiff-Appellant.
    Phillip D. Barber, P.C., Phillip D. Barber, Denver, Colorado, for Defendant-Appellee.
   Opinion by

Judge DAVIDSON.

In this forcible entry and detainer (FED) action brought pursuant to § 13-40-101, et seq., C.R.8.2002, plaintiff, Integra Financial, Inc., appeals from the judgment of the trial court denying its request for an award of attorney fees against defendant, Grynberg Petroleum Company. We reverse and remand.

(irynberg and Integra leased adjacent office suites in the same building. In April or May 1999, Grynberg entered into an oral sublease with Integra under which Grynberg occupied three of the five offices in Integra's suite. Integra attempted to terminate the lease after Grynberg began construction to wall off the three offices from the remainder of Integra's suite and to allow access from Grynberg's suite.

Integra filed this FED action, seeking possession, damages, and attorney fees pursuant to § 18-40-128, C.R.S.2002. It alleged that the term of the sublease was month to month and that it incurred damages from the construction and Grynberg's wrongful possession. In its answer, Grynberg alleged that the term of the sublease was coextensive with Integra's renewed lease with the owner of the building, that Grynberg was lawfully in possession, and that Integra was not damaged because it agreed to the construction. Grynberg also filed a counterclaim, alleging that the oral lease agreement provided for sharing the costs to subdivide Integra's suite. It sought damages for breach of contract and a declaratory order that it was entitled to possession. In addition, it filed counterclaims for breach of the implied duty of good faith and fair dealing, promissory estoppel, and outrageous conduct.

The hearing on possession was deferred until a trial on the merits, which was twice continued until February 2001. Grynberg paid rent until it vacated the premises in August 2000 under a reservation of rights. At no time prior to trial did it concede Integ-ra's right to possession. The trial court entered judgment for Grynberg on its counterclaim for damages, finding that the parties had agreed to subdivide the suite and split the costs. It entered judgment for Integra on the issue of possession, finding that there was no agreement on the duration of the tenancy and that a periodic tenancy was therefore created. However, it awarded In-tegra no damages for the cost of removing the renovations, finding that there had been no agreement on that point. It dismissed Grynberg's claims for breach of the duty of good faith and fair dealing, promissory estop-pel, and outrageous conduct.

Each party sought an award of attorney fees pursuant to § 13-40-1283. The trial court did not award attorney fees or costs, stating: "Both parties in this case have prevailed on a significant issue, and the Court therefore finds, for purposes of the request for attorney fees and costs, that there is no prevailing party. Each side shall bear its own costs and attorney fees." The issue of costs is not raised in this appeal.

Integra contends that the trial court erred in concluding that there was no prevailing party for purposes of awarding attorney fees pursuant to § 18-40-1283. We agree and conclude that the prevailing party for purposes of § 183-40-123 is the party adjudged to have the right to possession.

In the absence of a contract provision, statute, or court rule to the contrary, a prevailing party may not recover attorney fees. See Grynberg v. Agri Tech, Inc., 985 P.2d 59 (Colo.App.1999), aff'd, 10 P.3d 1267 (Colo.2000). However, § 13-40-1238 provides an exception to the general rule and allows a party to recover attorney fees as damages if the party prevails in an FED action: "The prevailing party in any action brought under the provisions of this article is entitled to recover damages, reasonable attorney fees, and costs of suit."

While a broad definition of the term "action" might include any counterclaims raised against a plaintiff seeking relief under the FED statutes, see, eg., § 4-1-201(1), C.R.S. 2002 (UCC definition of "action" includes counterclaims), we conclude that the definition for purposes of § 13-40-1283 excludes claims and counterclaims relating to nonpos-sessory issues.

An FED action is an action to recover possession of real property. See §§ 13-40-110(1), 18-40-118(1), C.R.S.2002; RTV, L.L.C, v. Grandote Int'l Ltd. Liab. Co., 937 P.2d 768 (Colo.App.1996). Other claims may be considered part of an FED action for purposes of § 18-40-1238 if they bear on the right to possession. See Wilcox v. Clark, 42 P.3d 29, 31 (Colo.App.2001)(where landlord commenced FED action and was awarded possession on alternative theory that lease was illegal, an award of attorney fees was proper because the "claim and the relief granted were for, and in the nature of, a forcible entry and detainer"). Conversely, claims that do not bear on the right to possession are not part of an FED action for purposes of awarding attorney fees. See Allmer v. Andrews, 153 Colo. 487, 386 P.2d 705 (1963)(interpreting prior version of FED statute, court disallowed portion of attorney fees awarded for time spent on nonpossesso-ry issue).

Moreover, denying a plaintiff attorney fees if the defendant successfully raises counterclaims on nonpossessory issues is inconsistent with other FED provisions. Section 18-40-115(1), C.R.S.2002, requires a court to enter judgment for the plaintiff for reasonable attorney fees and costs, in addition to restitution of the premises and certain other damages, if the defendant is found to have committed an unlawful detainer such that the plaintiff is entitled to possession. One party's unlawful detainer-and therefore, the other party's right to possession-triggers the award, rather than any other factors that may be relevant to determining the prevailing party in other contexts.

Here, the trial court determined that Integra was entitled to possession and that Grynberg had unlawfully detained the premises. The counterclaims on which Grynberg prevailed did not involve the issue of possession and, therefore, were not part of an action brought under the provisions of the FED article. Thus, Integra was the prevailing party in the FED action and must be awarded reasonable attorney fees it incurred for the work attributable to the claims relating to possession.

Grynberg's argument to the contrary notwithstanding, the fact that it vacated the premises before trial does not alter the outcome because its surrender of the premises was made under a reservation of rights, and it continued to claim that it was entitled to possession.

We also reject Grynberg's contention that Integra is bound by a purported concession in the trial court that the award of attorney fees to the prevailing party under § 18-40-1238 is discretionary rather than mandatory. Here, the trial court determined that there was no prevailing party, thereby precluding application of any standard. Therefore, there was no invited error.

The judgment is reversed, and the case is remanded to the trial court to determine and award Integra's reasonable attorney fees incurred on the issue of possession.

Judge VOGT and Judge DAILEY concur.


source: Caselaw Access Project

author: Judge KAPELKE.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Clifford JOHNSON, Defendant-Appellant.
    No. 00CA1639.
    Colorado Court of Appeals, Div. III.
    Oct. 24, 2002.
    Rehearing Denied Feb. 20, 2003.
    Certiorari Denied July 21, 2003.

      Ken Salazar, Attorney General, Wendy J. Ritz, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Elizabeth Griffin, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge KAPELKE.

Defendant, Clifford Johnson, appeals the judgment of conviction entered upon a jury verdict finding him guilty of attempted first degree murder, first degree assault, first degree burglary, three counts of menacing, violation of a restraining order, two counts of child abuse, and crime of violence. He also appeals his habitual criminality adjudication and sentence. We affirm in part, reverse in part, and remand with directions.

Defendant and the victim were married, but separated at the time of the events at issue. According to the victim's statement to the police, shortly after she moved out of the marital home, defendant went to her place of business and, in the presence of their two young children, slashed her with a utility knife. Witnesses at trial corroborated that account. At trial, however, the victim changed her story, testifying instead that the knife was hers and that she was injured in a struggle with defendant. She testified that she fabricated her original account to the police because she was angry with defendant.

A senior judge, sitting by assignment, conducted the trial on the substantive charges. However, another judge presided at the habitual criminal hearing and imposed the sentence. Defendant requested a continuance of the hearing on the habitual criminal charges based on a statutory requirement that such a hearing be conducted by the judge who presided at the trial on the substantive charges. The court denied the motion, proceeded with the hearing, and adjudicated defendant a habitual criminal.

I.

Defendant first contends that the court violated his right to a fair trial by an impartial jury by allowing expert testimony concerning "battered woman's syndrome" and the "cycle of violence." We disagree.

During the trial, the prosecution called an expert in the areas of domestic violence and battered woman's syndrome to explain the cycle of violence and the reasons that domestic violence victims sometimes recant their stories. Defendant objected that, because there was no evidence of a longstanding violent relationship between defendant and the victim, such testimony would be irrelevant and of no assistance to the jury. The court allowed the testimony.

The determination whether a witness is qualified to render an opinion helpful to the jury is left to the discretion of the trial court and will not be disturbed absent a clear showing of an abuse of discretion. Huntoon v. TCI Cablevision, Inc., 969 P.2d 681 (Colo.1998). An abuse of discretion does not occur unless the trial court's ruling is manifestly arbitrary, unreasonable, or unfair. People v. Copeland, 976 P.2d 334 (Colo.App.1998), aff'd, 2 P.3d 1283 (Colo.2000).

CRE 702 governs a trial court's determination as to whether expert testimony should be admitted. People v. Shreck, 22 P.3d 68 (Colo.2001). The inquiry should focus on whether the substance of the testimony will be helpful to the jury and whether the witness is qualified to render an expert opinion on the subject in question. Brooks v. People, 975 P.2d 1105 (Colo.1999). This inquiry requires a determination of the reliability of the underlying principles, the qualification of the witness, and the usefulness of the testimony to the jury. People v. Shreck, supra. If the testimony is admissible under CRE 702, the court must then determine whether the probative value of that evidence is substantially outweighed by the danger of unfair prejudice. CRE 408; Brooks v. People, supra.

We reject defendant's assertion here that opinion evidence regarding battered woman's syndrome and eycle of violence was irrelevant and unhelpful to the jury because there was no evidence of previous domestic violence. As the trial court noted, a police officer had testified that defendant acknowledged having been in prior violent altercations with the victim, although he denied having actually physically assaulted her. That evidence provided a sufficient foundation.

Further, in light of defendant's later testimony admitting that he had a prior conviction in California for spousal injury involving the victim here, any alleged foundational error in the admission of this evidence was harmless.

The expert did not testify concerning the specific facts of this case or indicate that he had any knowledge of the actual relationship between defendant and the victim. Rather, the thrust of the expert's testimony was that victims of spousal abuse often recant their accusations of abuse. The expert went on to list several factors that can lead to such recantations.

Significantly, "[in cases involving domestic violence, expert testimony concerning the reasons for victims' recantations is admissible." People v. Lofferty, 9 P.3d 1132, 1135 (Colo.App.1999). The victim here had changed her story, and thus the expert's testimony was relevant to the victim's eredi-bility, a key issue in the case.

With respect to the admissibility of this opinion evidence under CRE 408, we find no abuse of discretion.

In reviewing a trial court's ruling on admissibility of evidence under CRE 4038, we "must afford the evidence the maximum probative value attributable by a reasonable fact finder and the minimum unfair prejudice to be reasonably expected." People v. Gibbens, 905 P.2d 604, 607 (Colo.1995). Given that the opinion evidence here was relevant to the issue of the victim's credibility and that the expert did not testify regarding the specific relationship between defendant and the victim, the probative value of the evidence was not substantially outweighed by any unfair prejudicial effect.

Further, while we recognize that People v. Shreck, swpra, states that a trial court must make specific findings as to its determinations under CRE 403 and 702, we find no basis for reversal here for lack of sufficient findings.

The reliability of the principles underlying the battered woman opinion evidence is well recognized. See People v. Lafferty, supra; People v. Yaklich, 833 P.2d 758 (Colo.App.1991). Moreover, its helpfulness to the jury here in gauging the victim's credibility is plain. Similarly, as discussed, the evidence was admissible under the balancing test of CRE 403.

Accordingly, we conclude that any error by the court in failing to make specific findings is harmless under the cireumstances.

IL

Defendant next contends that his conviction for attempted first degree murder must be reversed because the elemental jury instruction omitted the "after deliberation" component of the mens rea element. We perceive no basis for reversal.

Because defendant failed to object to the jury instruction at trial, we review under a plain error standard and will reverse only if the error so undermined the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of convietion. Crim. P. 52(b); People v. Fichtner, 869 P.2d 539 (Colo.1994).

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." - Section 18-2-101(1), C.R.S.2002. A conviction for attempted first degree murder requires proof that the defendant acted with the intent to kill and after deliberation. Gann v. People, 736 P.2d 37 (Colo.1987); People v. Caldwell, 43 P.3d 663 (Colo.App.2001).

The jury instruction defining attempted murder should thus include "after deliberation" as a required element of the offense, and the omission of that element constitutes error. See Gann v. People, supra; People v. Caldwell, supra. Nevertheless, such omission "is not plain error so long as the instructions, read and considered in their entirety, clearly instruct the jury as to the required mens rea." Gann v. People, supra, 736 P.2d at 39.

Here, the instruction advised the jurors that to find defendant guilty of attempted first degree murder, they must find beyond a reasonable doubt that he "intentionally engaged in conduct constituting a substantial step toward the commission of Murder in the First Degree." Another instruction informed the jurors that to be guilty of first degree murder, one must have acted with the intent to kill and after deliberation.

Taken together, the jury instructions here, like those in Gann and Caldwell, informed the jurors that to find defendant guilty of attempted first degree murder, they must find that he intentionally engaged in conduct constituting a substantial step toward committing first degree murder, a crime that requires deliberation. Thus, the instructions, considered as a whole, adequately advised the jury of the required mens rea for the offense. Therefore, we find no plain error.

Further, even if we were to apply the more rigorous standard for alleged constitutional error, we would find no basis for reversal. Under the circumstances, we are confident beyond a reasonable doubt that the instructional error did not contribute to the guilty verdiet obtained. Accordingly, the error was harmless. See Griego v. People, 19 P.3d 1 (Colo.2001).

IIL

Defendant next contends that his child abuse convictions must be reversed because the jury instruction omitted the required element that the child be "unreasonably" placed in danger. We disagree.

Because defendant failed to object to the jury instruction at trial, we again review the instruction under a plain error standard. See People v. Fichtner, supra.

As relevant here, a person commits child abuse by permitting "a child to be unreasonably placed in a situation that poses a threat of injury to the child's life or health." Section 18-6-401(1)(a), C.R.S.2002 (emphasis added).

Here, the jury instruction informed the jury that the elements of the crime of child abuse are that the defendant, "without justifiable excuse," knowingly permitted his children to be placed in a situation that endangered their lives or health. The instruction thus contained the phrase "without justifiable exeuse," rather than the word "unreasonably."

Although the language of the instruction did not match that of the statute, we find no plain error. Defendant has not demonstrated that there is any significant difference between acting "without justifiable excuse" and acting "unreasonably," nor has he indicated how, under the facts of this case, a jury could have found that his acts were without justifiable exeuse, but nonetheless reasonable. Accordingly, the discrepancy in the language of the instruction did not so undermine the fundamental fairness of the trial as to cast doubt on the reliability of the verdict. Further, we are again confident beyond a reasonable doubt that the instructional error did not contribute to the guilty verdict. The error was thus harmless beyond a reasonable doubt.

IV.

Defendant next contends that his habitual criminal adjudication must be reversed because the judge who conducted that hearing was not the same judge who had presided at the trial on the substantive offenses. Under the circumstances here, we agree.

Upon a defendant's conviction of the substantive offense, the court must conduct a hearing to determine if the defendant's penalty should be enhanced because of prior felony convictions. - Section 18-1.3-808(1), C.R.S.2002 (formerly § 16-13-108(1)), provides: "As soon as practicable, the hearing shall be conducted by the judge who presided at trial or before whom the guilty plea was entered or a replacement for said judge in the event he or she dies, resigns, is incapacitated, or is otherwise disqualified as provided in section 16-6-201, C.R.S."

If the language of a statute is clear and unambiguous, we must apply the statute as written. Dunton v. People, 898 P.2d 571 (Colo.1995).

Section 18-1.3-803(1) provides in clear and unambiguous language that the habitual criminal hearing shall be conducted by the judge who presided at the trial, subject to four stated exceptions.

None of the exceptions was shown to be present here. The court did not find, and the People do not suggest, that the senior judge who presided at the trial on the substantive offense counts had died, resigned, or become incapacitated, or that he was disqualified from hearing the matter for any of the reasons set forth in § 16-6-201, which essentially addresses conflict of interest situations. The court merely found that that judge "is not available." Mere unavailability, however, is not one of the listed exceptions to the mandate in § 18-1.8-808(1).

Accordingly, under the circumstances, we agree with defendant that he was entitled to have the habitual criminal hearing conducted by the same judge who presided at the trial on the substantive offense counts. Defendant's conviction and sentence on the habitual criminal counts must therefore be reversed and the case remanded for a new hearing on those counts. Such new hearing shall be conducted by the judge who presided at the substantive trial, absent a showing that an exception in § 18-1.8-808(1) now applies.

Because the issues may arise again in connection with the retrial of the habituality counts and any resentencing, we address defendant's additional contentions.

v.

Defendant contends that (1) the information was defective and did not confer jurisdiction upon the trial court as to the habitual criminal counts, and (2) the prosecution had to prove that the prior convictions were for offenses that would be felonies in Colorado. We reject the contentions.

At the hearing on the habitual criminal counts, defendant argued that those counts were defective because they did not allege that each of the prior convictions was for an offense that would be a felony in Colorado. The trial court ruled that the counts were sufficient because they alleged that each pri- or conviction was a felony in California, the state of conviction.

The Colorado Supreme Court addressed this issue in People v. Drake, 785 P.2d 1257, 1267 (Colo.1990), holding: "If the crime the defendant was convicted of outside of Colorado was a felony in the state in which the defendant was convicted, the People need not allege in the information or the indictment that the erime is a felony in Colorado." The court went on to hold that the prosecution need not prove the crimes would have been felonies in Colorado so long as they were felonies in the state in which the defendant was convicted. Those holdings are dis-positive of defendant's contentions here.

VIL.

Defendant next asserts that his habitual criminal convictions must be reversed because he was entitled to a jury trial on those counts. We disagree.

Because "there is no right to jury trial in habitual eriminal proceedings," Colorado's statute authorizing the court to determine the habitual eriminality issues does not violate the Sixth Amendment or the right to a jury trial under Colo. Const. art. IL., § 16. People v. Edwards, 971 P.2d 1080, 1082 (Colo.App.1998).

Further, in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435, 455 (2000), the United States Supreme Court stated: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the pre-seribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt" (emphasis added). The Court thus excluded prior convictions from its general rule. See also Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998).

We therefore reject defendant's contention that he was entitled to a jury trial on the habitual criminal counts.

VIL.

Defendant next contends that one of the predicate California convictions-for the offense of "petty theft with a prior convietion"-is not a true felony conviction and cannot support an adjudication of habitual criminality. We disagree.

Section 18-1.83-801(2), C.R.S.2002 (formerly § 16-18-101(2)), provides that a person "convicted in this state of any felony, who has been three times previously convicted, upon charges separately brought and tried, and arising out of separate and distinct criminal episodes, either in this state or elsewhere, of a felony ... shall be adjudged an habitual criminal."

Under California law, a felony is a crime punishable by death or by imprisonment in the state prison. If, as here, a given statute does not define a crime as a felony or misdemeanor, "but merely specifies a punishment, the test of the nature or status of the offense, which only applies to this special class of felony-misdemeanor offenses or so-called wobblers, becomes the actual punishment imposed." People v. Bury, 50 Cal.App.4th 1873, 58 Cal.Rptr.2d 682, 683 (1996)(quoting People v. Superior Court, 38 Cal.App.4th 347, 45 Cal.Rptr.2d 107 (1995)).

Section 666 of the California Penal Code provides that one who has been convicted and imprisoned for certain theft-related crimes, and is subsequently convicted of petty theft, can be sentenced to "imprisonment in the county jail not exceeding one year, or in the state prison." Thus, under that statute, the California sentencing court has the discretion to treat the offense as either a felony or a misdemeanor for sentencing purposes. People v. Bouzas, 53 Cal.3d 467, 279 Cal.Rptr. 847, 807 P.2d 1076 (1991).

Here, defendant was convicted of "petty theft with a prior conviction." The California court sentenced him to a prison term and, in so doing, treated this offense as a felony. Because that conviction was therefore a felony under California law, it can properly serve as a predicate for a habitual criminal conviction under § 18-1.3-801(2). See People v. Drake, supra; see also People v. Terry, 47 Cal.App.4th 329, 54 Cal.Rptr.2d 769 (1996)(felony conviction for petty theft with a prior conviction can be a triggering offense for purposes of California's three strikes law). We therefore reject defendant's contention.

VHL

Defendant contends that his rights under the double jeopardy provisions of the United States and Colorado Constitutions were violated in the habitual criminal phase of his trial. Specifically, he argues that his California burglary conviction was illegally "double-counted" because it served as a predicate offense both for one of the Colorado habitual criminal counts and for the California conviction for "petty theft with a prior conviction," which was itself the predicate offense for another of the habitual criminal counts.

Because defendant did not raise this contention in the trial court, however, we decline to address it here. See People v. Cagle, 751 P.2d 614 (Colo.1988)(constitutional issues first raised on appeal will not be addressed); People v. Williams, 33 P.3d 1187 (Colo.App.2001).

IX,

Finally, defendant contends that the trial court erred in ordering consecutive sentences for attempted first degree murder and first degree assault. We agree.

Section 18-1-408(8), C.R.S.2002, requires imposition of concurrent sentences for offenses committed against a single victim where the counts are based on the same act or series of acts arising from the same criminal episode and the evidence supporting the convictions is identical. See Qureshi v. District Court, 727 P.2d 45 (Colo.1986); People v. Page, 907 P.2d 624 (Colo.App.1995). Whether the evidence is "identical" for this purpose turns on whether the charges result from the same discrete act or from two or more separate acts. People v. Page, supra.

Here, both the attempted first degree murder charge and the first degree assault charge resulted from and were based upon the same discrete act: defendant's slashing of the victim with a utility knife. Further, the record does not indicate that the prosecution relied on any separate acts by defendant to support the charges for these offenses. Accordingly, we conclude that concurrent sentences are required.

The judgment on the habitual criminal counts and the sentence are reversed. The case is remanded for a new hearing on those counts, for resentencing on all counts, and also for correction of the mittimus to reflect that defendant's sentences for attempted first degree murder and first degree assault shall run concurrently rather than consecutively. In all other respects, the judgment is affirmed.

Judge NEY and Judge NIETO concur.


author: Judge CASEBOLT.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Raul FRANCO, Defendant-Appellant.
    No. 01CA1306.
    Colorado Court of Appeals, Div. II.
    Nov. 7, 2002.
    Certiorari Denied Aug. 4, 2003.

      Ken Salazar, Attorney General, Peter J. Cannici, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Cynthia Camp, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge CASEBOLT.

Defendant, Raul Franco, appeals the judgment of conviction entered upon a jury verdict finding him guilty of unlawful possession of a schedule II controlled substance. We affirm.

I.

Defendant asserts that the trial court violated his statutory right to a speedy trial. We disagree.

On June 26, 2000, defendant entered his plea of not guilty,. The court scheduled a motions hearing for August 18, 2000, and a trial for September 18, 2000.

On August 16, 2000, the prosecution moved to continue the motions hearing because an essential witness was recovering from throat surgery and would be unable to testify. The prosecution's motion represented that defendant would not oppose the prosecution's continuance request and would execute a speedy trial waiver if the court would grant him a personal recognizance bond. The trial court continued the motions hearing and granted defendant a personal recognizance bond.

On September 15, 2000, defendant appeared and executed a written speedy trial waiver. The trial court ruled, with the agreement of the parties, that the effective date of the waiver was August 16, 2000.

On October 5, 2000, the prosecution sent defense counsel a "Notice of Trial" indicating that the court had scheduled defendant's trial for March 6, 2001. Apparently, this setting occurred off the record and without defense counsel present. It is undisputed that de-

fense counsel received a copy of the prosecution's setting notice shortly after it was sent.

On March 2, 2001, defendant filed a motion to dismiss for violation of the speedy trial statute. As grounds, defendant alleged that the speedy trial period had expired six months from August 16, 2000, that is, on February 16, 2001.

The trial court denied defendant's motion, finding that because defense counsel had notice of the trial date and failed to object to it, the speedy trial period had been extended until the scheduled date of the trial pursuant to § 18-1-405(5.1), C.R.S.2002. Defendant's trial commenced on March 6, 2001.

The speedy trial statute provides, in relevant part, as follows:

(1) Except as otherwise provided in this section, if a defendant is not brought to trial on the issues raised by the complaint, information, or indictment within six months from the date of the entry of a plea of not guilty ... the pending charges shall be dismissed, and the defendant shall not again be indicted, informed against, or committed for the same offense, or for another offense based upon the same act or series of acts arising out of the same criminal episode.
(5.1) If a trial date is offered by the court to a defendant who is represented by counsel and neither the defendant nor his counsel expressly objects to the offered date as being beyond the time within which such trial shall be had pursuant to this section, then the period within which the trial shall be had is extended until such trial date and may be extended further pursuant to any other applicable provisions of this section.

Section 18-1-405, C.R.9.2002.

Defendant argues that the trial court erred in finding a waiver under § 18-1-405(5.1) because the trial setting occurred off the record and he was never "given an opportunity to either accept or reject the [trial] date." We are not persuaded.

While it is the better practice to have defendant's counsel present when setting a trial, nothing in the plain language of § 18-1-405(5.1) precludes an off-the-record trial setting. Nor does the section specify that the defendant or defense counsel must be physically present at the time the trial setting occurs. See People v. Allen, 885 P.2d 207, 211 (Colo.1994)(under § 18-1-405(5.1), defendant waived his speedy trial where the court clerk contacted defense counsel, who agreed to the proposed trial date).

Defendant is also mistaken in his assumption that § 18-1-405(5.1) is applicable only if the defense explicitly assents to the trial date offered by the court. By its terms, the waiver provision of § 18-1-405(5.1) is applicable in every case unless the defense makes a speedy trial objection at the time a trial date is offered. "[A] defendant cannot stand mute and allow a trial schedule to be adopted without registering his complaint that such schedule violates his speedy trial rights." People v. Atkins, 885 P.2d 243, 244 (Colo.App.1994), overruled on other grounds by People v. Thornton, 929 P.2d 729 (Colo.1996).

We conclude that, when a trial date is set at an off-the-record proceeding without defense counsel present, two requirements must be satisfied before a court can find a speedy trial waiver pursuant to § 18-I-405(5.1). To establish a waiver, the record must demonstrate that: (1) defense counsel had actual notice of the date for which trial is set; and (2) defense counsel had an adequate opportunity to object.

In this case, both requirements are satisfied. It is undisputed that defense counsel received a copy of the October 5, 2000, setting notice indicating that the court had scheduled defendant's trial for March 6, 2001. Defendant does not allege, and the record does not indicate, that delivery of this notice was delayed in any way. Thus, we are persuaded that defense counsel had an adequate opportunity to object to the trial date proposed by the court. Accordingly, we conclude that defendant waived his right to a speedy trial pursuant to § 18-1-405(5.1).

We also reject defendant's alternative argument that the August 16, 2000, waiver was invalid. Defendant contends he was coerced to execute this speedy trial waiver in order to be released from custody on a personal recognizance bond. However, when the prosecution moved to continue the motions hearing, defendant could have opposed the motion, asserted his right to a speedy trial, and moved for a reduction of his bond. Apparently, defendant did not do so because he concluded that he would have a better chanee of obtaining a personal recognizance bond if his request were unopposed by the prosecution. Thus, to gain the prosecution's acquiescence to his bond reduction request, defendant agreed not to oppose the prosecution's continuance request and to execute a speedy trial waiver.

Under these cireumstances, defendant cannot demonstrate that his waiver was involuntary. Moreover, we note that, in his motion to dismiss for violation of speedy trial, defendant did not challenge the validity of the August 16, 2000, waiver.

IL.

Defendant argues that the statute criminalizing the possession of a schedule II controlled substance violates equal protection principles because the penalty associated with that offense is more severe than the penalty for unlawful use of a schedule II controlled substance. Again, we disagree.

In People v. Cagle, 751 P.2d 614 (Colo.1988), the supreme court held that the General Assembly's decision to impose a more severe penalty for possession of a controlled substance than for unlawful use of a controlled substance was rational and did not violate equal protection principles because a person possessing a controlled substance has the capability to distribute it. Compare § 18-18-405, C.R.S$.2002, with § 18-18-404, C.R.8.2002.

Nonetheless, defendant argues that the supreme court overruled People v. Cagle, supra, in People v. Villapando, 984 P.2d 51 (Colo.1999). Recently, in People v. Warren, 55 P.3d 809 (Colo.App.2002), and People v. Campbell, 58 P.3d 1080, 2002 WL 926945 (Colo.App. No. 01CA0446, May 9, 2002), divisions of this court rejected this argument. We find the reasoning of Warren and Campbell to be persuasive and, following it here,

conclude that it is dispositive of defendant's claim.

The judgment is affirmed.

Judge ROY and Judge JONES concur.


text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Richard D. FRY, Defendant-Appellant.
    No. 00CA1459.
    Colorado Court of Appeals, Div. II.
    Nov. 7, 2002.
    Rehearing Denied Jan. 2, 2003.
    Certiorari Granted Aug. 4, 2003.

      Ken Salazar, Attorney General, Paul Koeh-ler, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, Colorado, for Defendant, Appellant.
   Opinion by

Judge CASEBOLT.

Defendant, Richard D. Fry, appeals the judgment of conviction entered upon jury verdicts finding him guilty of second degree murder, second degree assault, and five habitual eriminal counts. We reverse and remand for a new trial.

The victim was defendant's live-in girlfriend. When the victim's son telephoned defendant's residence, the victim was unable to speak intelligibly with him. Concerned for her welfare, the son notified the police and asked them to check on her. When the police arrived at the residence, they found the victim in bed, unconscious.

After the victim was transported to the hospital, doctors determined that she was suffering from a severe head injury resulting from blunt trauma to her head, and the doctors performed an emergency operation to alleviate a subdural hematoma. Within the next week, the victim regained consciousness and, according to hospital personnel, was able to follow verbal directions and cues, but she remained unable to speak. She later lapsed into a vegetative state and died of pneumonia.

The prosecution charged defendant with second degree assault and second degree murder stemming from the victim's injuries and death. At trial, the prosecution introduced the testimony of a police officer who had interviewed the victim in the hospital following her surgery. The officer testified that the victim affirmatively nodded in response to his questions about whether defendant had caused her injuries In addition, the prosecution read into evidence the preliminary hearing testimony of defendant's uncle, who had died before defendant's trial. The uncle testified that defendant admitted beating the victim and causing her injuries.

This appeal followed defendant's convietion.

I.

Defendant first contends that the trial court violated his constitutional right to confront the witnesses against him by admitting his uncle's testimony from the preliminary hearing. We agree.

The right to confront and cross-examine witnesses is guaranteed by the Sixth Amendment and by Colo. Const. art. II, § 16. See Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); Stevens v. People, 29 P.3d 305 (Colo.2001).

The right .of confrontation generally requires the prosecution to present evidence through live testimony. The right of confrontation prevents conviction by affidavit, permits cross-examination as a tool for testing the witness's statements and recollections, and allows the jury to judge the demeanor of the witness and thereby better assess credibility. California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 LEd.2d 489 (1970); People v. Dement, 661 P.2d 675 (Colo.1983).

Relying upon the right of confrontation under the Colorado Constitution, the supreme court, in People v. Smith, 198 Colo. 120, 597 P.2d 204 (1979), precluded the admission at trial of preliminary hearing testimony of an unavailable witness. The court reasoned that the purpose of a preliminary hearing is for a neutral court to sereen the case and dismiss it if probable cause has not been established. It also concluded that evi-dentiary and procedural rules are relaxed at such hearings, and a defendant's right to cross-examine and to introduce evidence in that hearing may be curtailed as to matters, such as credibility, unnecessary to a determination of probable cause. Further, the hearing is not a minitrial that would afford the defendant an opportunity to effect discovery. The court also noted that defense counsel does not have the same motive to eross-examine concerning witness credibility because the trial court may not make credibility determinations unless the testimony is wholly incredible.

Smith establishes a bright-line rule that admits of no exceptions, see People v. Smith, supra (Rovira, J., dissenting), and in our view, it is dispositive here. A preliminary hearing continues to serve the limited purpose of determining whether probable cause exists. See Crim. P. 7(h)(8); People v. District Court, 964 P.2d 498 (Colo.1998), overruled in part by People v. Villapando, 984 P.2d 51 (Colo.1999). And, none of the remaining reasons upon which the Smith court relied are less applicable today than they were when that case was decided.

Contrary to the trial court's conclusion and the People's argument, we do not perceive that Smith has been overruled or limited by People v. Dement, supra, and Blecha v. People, 962 P.2d 931 (Colo.1998). Those cases employ the two-part Confrontation Clause test of Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), and as pertinent here, require the prosecution to demonstrate that a proffered statement possesses particularized guarantees of trustworthiness. While the Smith case, decided before People v. Dement and Blecha v. People, did not employ that two-part test, the Smith court nevertheless essentially determined that preliminary hearing testimony does not possess the requisite trustworthiness. Indeed, Smith employed some of the same factors identified in Dement and Blecho as bearing upon trustworthiness. See also CRE 804(b)(1) committee comment (citing Smith as setting forth the rule as to testimony given at a preliminary hearing).

Accordingly, the trial court erred in admitting the uncle's preliminary hearing testimony. However, because a violation of the Confrontation Clause is subject to constitutional harmless error analysis, we must next determine whether the constitutional error here is harmless beyond a reasonable doubt. See Bernal v. People, 44 P.3d 184 (Colo.2002). We conclude that it is not.

To find constitutional error harmless, a court must be confident beyond a reasonable doubt that the error did not contribute to the guilty verdict. The constitutional harmless error test is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. Blecha v. People, supra.

The People bear the burden of proving that the uncle's hearsay statement did not contribute to defendant's conviction or that the error was harmless beyond a reasonable doubt. If there is a reasonable probability that defendant could have been prejudiced by the error, the error cannot be harmless. Blecha v. People, supra.

Here, in addition to the facts recited above, the evidence established that defendant met the victim at a bar near their residence on the night before her admission to the hospital, and the two got into an argument in the bar parking lot. When they left in the vie-tim's car, a neighbor who fortuitously followed the vehicle saw defendant repeatedly strike the victim in the face with the back of his hand as she drove the car.

Other transaction evidence showed that defendant had beaten the victim previously and that he had previously beaten other girlfriends with his fists. A previous girlfriend also testified that defendant admitted beating the victim on this occasion and told her that "this time, he had gone too far." He also told this witness that only she and his uncle knew the truth about what he had done to the victim and that he kept his hands hidden from the view of the deputy who came to check on the victim's welfare. In a previous girlfriend-beating incident, damage to defendant's knuckles had led to his arrest.

In contrast, according to defendant, the victim had come home late the previous evening and was incoherent, vomiting, and barely mobile. As he helped her to the bedroom, she fell down twice, and he thought she was under the influence of drugs. The victim had previously been hospitalized for alcohol poisoning, and aside from an aleohol problem, she was also a cocaine abuser.

Defendant also established that the former girlfriend who testified to defendant's admissions had previously been convicted of forgery and was an alcohol and drug abuser. She also claimed that defendant assaulted her on three previous occasions, but admitted that she never told the police that he was the assailant, instead accusing another man.

Concerning the victim's inculpatory head nods in response to questioning by a sheriff's investigator, the evidence established that medical personnel "didn't really know" if the victim could understand and respond to the investigator's questions when he interviewed her, although they acknowledged that she could follow simple commands and feed herself, The victim had sustained a head injury that caused severe swelling to her brain, and she had undergone surgery to remove a sub-dural hematoma. Uncontroverted evidence established that such an injury causes stroke-like symptoms and affects the patient's ability to think. Further, the investigator, who questioned the victim without any medical personnel present, had not asked questions to determine whether she was oriented as to time, place, and events.

Defendant also presented evidence impeaching the uncle's testimony, which tended to show that the uncle suffered from deafness, had a previous eriminal record, was an alcoholic, and was having a sexual affair with the victim.

The prosecution relied heavily upon the uncle's testimony in closing argument and had previously represented to the trial court that his testimony was "more probative on the issue of what happened to the victim than any other evidence in existence."

On this record, we cannot say beyond a reasonable doubt that the guilty verdict in this case was surely unattributable to the error. While there is corroborating evidence that defendant committed this crime, eredi-bility factors and the other evidence lead us to conclude that there is a reasonable probability that defendant could have been prejudiced by the error.

Accordingly, a new trial is required.

IL.

Because it is likely to arise upon retrial, we next address defendant's contention that the trial court violated his confrontation rights when it admitted, under CRE 807, the victim's nonverbal hearsay statements accusing him of causing her injuries. We disagree with the contention.

Unless an exception or exelusion applies, a hearsay statement, which includes nonverbal conduct intended to be communicative, is not admissible. CRE 801, 802.

To be admissible under the residual hearsay exception, the statement must have circumstantial guarantees of trustworthiness, and the court must determine that; (1) the statement is offered as evidence of a material fact; (2) the statement is more probative on the points for which it is offered than any other evidence that the proponent can procure through reasonable efforts; (8) the general purposes of the rules of evidence and the interests of justice are best served by the admission of the statement; and (4) the adverse party had adequate notice in advance of trial of the proponent's intention to offer it. CRE 807; People v. Fuller, 788 P.2d 741 (Colo.1990).

The Confrontation Clause and the hearsay rule and its exceptions protect similar, but not identical interests. Accordingly, the Confrontation Clause may be violated even though statements are admitted under a recognized exeeption to the hearsay rule. California v. Green, supra; see also United States v. Oates, 560 F.2d 45 (2d Cir.1977); People v. Farrell, 34 P.3d 401 (Colo.2001).

Otherwise admissible hearsay is generally subject to two requirements for admission under the Confrontation Clause. First, the prosecution must either produce or demonstrate the unavailability of the declarant whose statement it wishes to use. After the prosecution proves unavailability, it must demonstrate that the statement possesses particularized guarantees of trustworthiness. Ohio v. Roberts, supra;: Blecha v. People, supra.

A court should consider a number of factors when assessing the trustworthiness of a hearsay statement for Confrontation Clause purposes, which include the nature and character of the statement, the relationship between the parties to the statement, the declarant's probable motivation for making the statement, and the cireumstances under which the statement was made. Courts should also consider where and when the statement was made, to whom the statement was made, what prompted the statement, how the statement was made, and what the statement contained. See Stevens v. People, supra; People v. Fuller, supra; People v. Jensen, 55 P.3d 135 (Colo.App.2001).

Particularized - guarantees _ of trustworthiness must be shown from the totality of the cireumstances, but "the relevant cireumstances include only those that surround the making of the statement and that render the declarant particularly worthy of belief." Idaho v. Wright, 497 U.S. 805, 819, 110 S.Ct. 3139, 3148, 111 L.Ed.2d 638, 655 (1990). In other words, if the declarant's truthfulness is so clear from the surrounding cireumstances that the test of cross-examination would be of marginal utility, then the hearsay rule does not bar admission of the statement at trial,. A court may not refer to other evidence at trial when assessing the particularized guarantees of trustworthiness. Idaho v. Wright, supro; Bernal v. People, supra.

Here, the prosecution offered the nonverbal statements of the victim through the testimony of the police officer who questioned her following the surgery. At a hearing, the officer testified that when he spoke with the victim, the hospital staff told him that "she was not verbal but that she was responding to commands and other things they were doing." When the officer asked the staff if it would be appropriate for him to visit her, they told him "it probably would, and whether or not she can respond to you, we don't really know, but she is responding to some of the things we are doing."

The officer testified that he was acquainted with the victim before this incident, she knew he was a law enforcement officer, and he believed the victim recognized him when he visited her. The officer stated that he began the interview by talking about her family and felt that she was "beginning to somewhat respond to that" because she focused on him. He then testified as follows:

I asked her if [defendant] had caused the bruising; and she nodded yes. And then I asked her if [defendant] had done this to her; and, again, got an affirmative response. I then asked: Did [defendant] hit you in the head; and again, she nodded to me yes.... And so I asked her: Are you telling me that [defendant] did this to you? And, again, she responded with a nodding of her head affirmatively.

The officer also testified that when he finished his questioning, he told the victim that he would advise her son he had spoken with her and asked her if there was anyone else she wanted him to notify. In response to this statement, the victim shrugged her shoulders.

While the issue is extremely close, we agree with the trial court's decision to admit the evidence. First, we note that the victim did not have any motivation to lie about who caused her injuries. From all accounts, she and defendant were living together, and she had recently had a restraining order against him dropped. Thus, it does not appear that, when she made her statement, she would have wanted to implicate defendant if he had not actually caused her injuries.

Second, the cireumstances surrounding her statement indicate that she was capable of understanding and responding to verbal questions. The hospital personnel said that she could respond when they attended to her. And, the officer testified that the victim showed some sign of recognizing him and being attentive to his questions. Further, although he did not ask a question that would require a "no" response, the victim responded in a different fashion by shrugging her shoulders when he inquired whether there was anyone she wanted him to contact.

Third, the victim's perception and identification of the person who caused her injuries were not in question. Clearly, she knew who had beaten her because it must have occurred at close range. Thus, cross-examination to challenge her ability to perceive would be of marginal utility. Cf. State v. Tyler, 346 N.C. 187, 485 S.E.2d 599 (1997)(burn victim's nonverbal statements indicating that defendant caused her injuries possessed cireum-stantial guarantees of trustworthiness because there was no indication that the victim had any reason to lie). Contra State v. Jacob, 242 Neb. 176, 494 N.W.2d 109 (1993)(shooting victim's nonverbal statements did not possess cireumstantial guarantees of trustworthiness because nobody had inquired whether she actually saw the defendant fire the shots, which left doubt about the aceura-cy of her identification; in this instance, the utility of cross-examination would not be of marginal value).

We acknowledge that the victim's statements were not spontaneous, but were prompted by questioning. We further note that there was reason to question the victim's ability to remember and recount the incident, given the surgery to alleviate the subdural hematoma and the medical staffs equivocation about her condition. However, because courts have considerable leeway in their consideration of appropriate factors, see Stevens v. People, supra, these counterpoints are not wholly determinative.

For these reasons, and because the utility of eross-examination is remote in this instance, we conclude that the statements contained adequate guarantees of trustworthiness.

As for the remaining requirements under CRE 807, we note that the victim's statement was offered as evidence of the identity of the perpetrator, a material fact in the case. And, because there were no other witnesses to the beating, her statement was more probative on the points for which it was offered than any other evidence that reasonably could be procured. Further, the general purposes of the rules of evidence and the interests of justice are best served by the admission of this statement, and defendant had adequate notice of the prosecution's intention to offer it into evidence. See CRE 807; People v. Fuller, supra.

Consequently, we perceive no error in the trial court's decision to admit the evidence. See People v. Jensen, supra.

IIL.

Defendant next contends the trial court erred in denying his motion to dismiss the second degree murder count at the close of the prosecution's case. Specifically, he argues that the evidence was insufficient to support a conclusion that he was aware that his conduct was practically certain to result in the victim's death. We disagree.

When the sufficiency of the evidence is challenged on appeal, the reviewing court determines whether the evidence, viewed as a whole and in the light most favorable to the prosecution, is sufficient to support a conclusion by a reasonable person that the defendant is guilty of the erimes charged beyond a reasonable doubt. Kogan v. People, 756 P.2d 945 (Colo.1988); People v. Pena, 962 P.2d 285 (Colo.App.1997).

A person commits the erime of second degree murder if he or she knowingly causes the death of another person. Section 18-3-103(1), C.R.9.2002. "Knowingly" means that the actor is aware that his conduct is practically certain to result in another's death. Section 18-1-501(6), C.R.9.2002; Moore v. People, 925 P.2d 264 (Colo.1996).

Here, the neurosurgeon who operated on the victim testified about the extent of her injuries. He noted that she had suffered a severe blow to her head that caused her injury and subsequent death and that she had some bruising in the temple area on the same side of her head as the subdural hema-toma. The coroner also testified that a blow to the head most likely caused the victim's injury.

Three of defendant's former girlfriends testified that, during their respective relationships with defendant, he had, on more than one occasion, hit them with his fists. In most instances the blows were to the head or face. And, police officers responding to the emergency calls on those occasions corroborated the girlfriends' testimony.

In addition, one girlfriend testified that during defendant's relationship with the vie-tim, she had witnessed defendant hit the victim and slam her head into the side of a refrigerator. She also testified that defendant admitted beating the victim and told her that "this time he went too far."

Further, one of defendant's neighbors testified that on the evening of the assault, while she was driving home, she came upon defendant's vehicle from behind and followed it for some distance. Her headlights were shining into the car so that she could clearly see activity there. She observed that the victim was driving and defendant was a passenger. She witnessed the defendant strike the victim in the head at least four times while she was following their vehicle. With each blow, the victim's car swerved across the yellow line in the middle of the road.

Viewing the foregoing evidence in the light most favorable to the prosecution, as we must, we conclude that there was sufficient evidence for the jury to determine that defendant was aware that his conduct was practically certain to result in the victim's death. The evidence indicated that defendant had beaten women about the head and face previously and in those episodes had stopped before he caused death. Therefore, we may infer he knew what level of violence was sufficient to accomplish his goals without causing death. Because, in this instance, defendant continued the beating until the victim was dazed and incapable of speaking coherently, and he admitted to his former girifriend that he had "gone too far this time," a jury could reasonably conclude that he knew that his conduct was practically certain to cause death. See People v. District Court, 198 Colo. 70, 595 P.2d 1045 (1979)(one who repeatedly strikes another for ten to fifteen minutes and inflicts a massive head injury on his victim can be held to be aware of the possible fatal consequences of his actions); cf. People v. Saleh, 45 P.3d 1272 (Colo.2002) (any object, including a body part, can be a deadly weapon if it is used in a manner capable of producing death or serious bodily injury).

Thus, we perceive no error in the trial court's denial of defendant's motion to dismiss the second degree murder count.

IV.

Defendant next contends that second degree assault is a lesser included offense of second degree murder when the offenses are based on the same conduct against the same victim. We disagree.

A defendant may be convicted of multiple offenses arising out of a single transaction if he or she has violated more than one statute. Section 18-1-408(1)(a), Armintrout v. People, 864 P.2d 576 (Colo.1993); see also People v. Garcia, 940 P.2d 357 (Colo.1997). However, double jeopardy and merger principles preclude a conviction for a crime that is a lesser included offense of another crime for which the defendant has also been convicted in the same prosecution. People v. Leske, 957 P.2d 1030 (Colo.1998). An offense is lesser included for purposes of double jeopardy and merger when proof of the essential elements of the greater offense necessarily establishes all the elements required to prove the lesser offense. Boulies v. People, 770 P.2d 1274 (Colo.1989).

If each offense requires proof of a fact not required by the other offense, the offenses are sufficiently distinguishable. To determine whether one offense is included in another, we compare the elements of the statutes involved and not the evidence at trial, People v. Leske, supro; Armintrout v. People, supra; see also People v. Ramirez, 18 P.3d 822 (Colo.App.2000).

As noted above, a person commits the crime of second degree murder if he or she knowingly causes the death of another person. The mens rea of "knowingly" requires the actor to be aware that his conduct is practically certain to result in another's death. - Sections 18-1-501(6), 18-8-108(1), C©.R.98.2002.

As pertinent here, second degree assault requires proof that, acting with an intent to cause bodily injury to another person, the defendant inflicted serious bodily injury to that person or another. Section 18-8-208(1)(g), C.R.8.2002.

The mens rea requirements of the two crimes are different. Second degree murder requires proof defendant knew that death was practically certain to result from the conduct. However, second degree assault requires intent to cause serious bodily injury. Because proof of the mental state of "knowingly" does not prove the mental state of "intentionally," second degree assault is not a lesser included offense of second degree murder. See Armintrout v. People, supra (comparing the elements of the offenses, not the evidence presented); see also People v. Laurson, 15 P.3d 791 (Colo.App.2000)(attempted second degree murder is not a lesser included offense of first degree assault because proof of first degree assault does not prove an awareness that death is practically certain to result from the attempted conduct).

v.

Defendant next contends that, under People v. Tippett, 733 P.2d 1183 (Colo.1987), the trial court abused its discretion by failing either to grant his motion for election between the charged offenses or to instruct the jury that it could find him guilty of only one of the two charges. We disagree.

Section 18-1-408@8), C.R.S.2002, provides that:

When two or more offenses ... are supported by identical evidence, the court upon application of the defendant may require the state, at the conclusion of all the evidence, to elect the count upon which the issues shall be tried. If more than one guilty verdict is returned ... the sentences imposed shall run concurrently....

The court has discretion under the statute to either grant or deny a motion to elect. See People v. Tippett, supra; People v. Bowman, 669 P.2d 1369 (Colo.1983); People v. Metcalf, 926 P.2d 133 (Colo.App.1996). Accordingly, we review the trial court's decision under an abuse of discretion standard. To constitute an abuse of discretion, the trial court's determination must be manifestly arbitrary, unreasonable, or unfair. People v. Ibarra, 849 P.2d 33 (Colo.1993).

Here, we will assume, without deciding, that the two offenses are supported by identical evidence. Even so, although the trial court denied defendant's motion to elect between second degree murder and second degree assault, it nevertheless sentenced him to concurrent sentences as required by § 18-1-408(8). cretion. Thus, we perceive no abuse of dis-

As for defendant's alternative argument that the trial court should have instructed the jury that it could only convict him of one of the charges, we likewise reject that contention.

Section 18-1-408(1), C.R.S.2002, provides that "[when any conduct of a defendant establishes the commission of more than one offense, the defendant may be prosecuted for each such offense." As discussed above, because second degree murder and second degree assault are separate offenses having different elements, we perceive no error in the trial court's decision to allow the jury to consider both charges.

VL.

Defendant next contends that the trial court erred in admitting evidence of his prior acts of domestic violence. Specifically, he argues that such evidence violated CRE 404(b) because it was not relevant to any material fact, and the probative value of such evidence was substantially outweighed by the danger of unfair prejudice. We disagree.

Evidence of other crimes, wrongs, or acts is generally inadmissible to prove a defendant's character or show his or her propensity for such conduct. However, it may be admitted under CRE 404(b) for other purposes, such as showing the absence of mistake or accident, motive, intent, preparation, or common plan or scheme. People v. Rath, 44 P.3d 1033 (Colo.2002).

Before evidence of other acts is admissible, the prosecution must show that: (1) the evidence relates to a material fact; (2) the evidence has logical relevance in that it adds to the probability that the material fact is true; (8) the logical relevance of the evidence does not depend on an intermediate inference that the defendant bas a bad character, which would be employed to support a further inference that the defendant acted in conformity with his bad character; and (4) the probative value of the evidence is not substantially outweighed by the prejudicial impact of the evidence. People v. Spoto, 795 P.2d 1314 (Colo.1990).

Trial courts are necessarily accorded considerable discretion in deciding questions concerning the admissibility of evidence, and an abuse of that discretion will be found only upon a showing that the ruling was manifestly arbitrary, unreasonable, or unfair. People v. Rath, supra. Because the balance required by CRE 408 favors admission, a reviewing court must afford the evidence the maximum probative value attribut able by a reasonable fact finder and the minimum unfair prejudice to be reasonably expected. See People v. Gibbens, 905 P.2d 604, 607 (Colo.1995).

Evidence of uncharged crimes has a distinct and unmistakable potential for unfair prejudice, but unfair prejudice within the meaning of the rule refers only to "an undue tendency on the part of admissible evidence to suggest a decision made on an improper basis" and does not mean prejudice that results from the legitimate probative force of the evidence. People v. Rath, supra, 44 P.3d at 1048 (quoting People v. Gibbens, supra, 905 P.2d at 608).

Here, the prosecution sought to admit the testimony of three of defendant's former girlfriends regarding domestic violence perpetrated against them by defendant. Following a pretrial hearing, the court analyzed the proposed evidence under the four-prong Spo-to test enunciated above and found it admissible. And, before each witness testified at trial, the court instructed the jury to consider the testimony only as it related to showing intent, identity, knowledge, motive, common plan, method of operation, or the absence of mistake.

We perceive no abuse of discretion. Throughout the trial, defendant maintained that he did not hit the victim and that she sustained her injuries from a fall. Thus, evidence of other acts of domestic violence tends to show defendant's intent, malice, and the absence of mistake or accident, and therefore it relates to a material fact.

The evidence shows that on multiple occasions, defendant hit or battered women with whom he had an intimate relationship. All of the incidents involved angry, violent outbursts in which defendant hit the women with his fists, usually in the face, head, or upper body. And, all of the incidents were similar to the transactions alleged to have occurred in this case. Thus, the evidence is logically relevant to a material fact because it makes it more probable that defendant intended the consequences of his actions and that he did not act by mistake or accident on this occasion. The evidence also demonstrates defendant's motive and malice.

In addition, the logical relevance of this evidence is independent of the prohibited inference that defendant is a person of bad character and acted in conformity therewith.

Finally, the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. Although any such evidence is prejudicial, it is unfair prejudice with which we are concerned. There were no other surviving eyewitnesses to this crime, and domestic violence is a crime that often occurs without witnesses. Thus, the probative value of this evidence is extremely high. Further, the trial court gave the jury a limiting instruction concerning the use of this evidence, thereby minimizing any unfair prejudice. See People v. Harlan, 8 P.3d 448 (Colo.2000)(court must afford the evidence the maximum probative weight and minimum prejudicial effect reasonably to be expected).

Accordingly, the trial court did not abuse its discretion in admitting this testimony.

In light of our disposition of these issues, we decline to address defendant's contention related to the jury's request for additional guidance during deliberations. We also decline to address defendant's contentions regarding his habitual eriminal convictions.

The judgment is reversed, and the case is remanded for a new trial

Judge JONES and Judge ROY, concur.


author: Judge JONES.

text:
    JOHN R. BEHRMANN REVOCABLE TRUST, Plaintiff-Appellant, v. Eric L. SZALOCZI, Michael P. Batzer, Jay Crist, Robert S. Pfeiffer, Allan Wise, Michael Caskey, Roland DeBruyn, Jeffrey Weber, and Bruce Williams, Defendants-Appellees.
    No. 01CA0775.
    Colorado Court of Appeals, Div. II.
    Nov. 21, 2002.
    Certiorari Granted July 21, 2003.

      Brega & Winters, P.C., James W. Bain, Denver, Colorado, for Plaintiff-Appellant.
    Holme Roberts & Owen LLP, David S. Steefel, Mark R. Gordon, Denver, Colorado, for Defendants-Appellees.

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

   Opinion by

Judge JONES.

Plaintiff, John R. Behrmann Revocable Trust, appeals the dismissal of its claims for damages against defendants, Eric L. Szaloc-zi, Michael P. Batzer, Jay Crist, Robert S. Pfeiffer, Allan Wise, Michael Caskey, Roland DeBruyn, Jeffrey Weber, and Bruce Williams, each a shareholder and a director or officer in Preston Reynolds and Company, Inc. (PRC). We reverse and remand.

The trust and defendants are the sole shareholders in PRC, a closely held corporation. Defendants controlled the PRC board of directors, of which John R. Behrmann was a member. In November 1999, defendants voted to remove Behrmann from the board, and he became the sole outside minority shareholder.

On April 6, 2000, PRC entered into an asset purchase to sell substantially all of its assets to two companies, MDU Resources Group, Inc. and WBI Production, Inc. WBI agreed to pay PRC $75 million, with the potential for an additional payment of $25 million upon the exercise of an option by PRC to repurchase an option from WBI. In addition, the agreement provided for stock options, a future distribution of the repurchase option funds of $25 million, employment agreements, $7.7 million in bonuses to board members and employees, and tax benefits to the officers of PRC. The sale closed on April 17, 2000.

The trust asserted that the terms of the agreement worked to its detriment as a no-nofficer, outside shareholder.

The trust dissented to the sale, and subsequently the trust filed this action alleging that defendants had breached their fiduciary duties to the trust by: (1) granting themselves stock options below market value, cashing out some stock options early, and extending other stock options beyond their expiration dates; (2) negotiating personal employment contracts for themselves in connection with PRC's contract to sell substantially all its assets to WBI; (8) arranging to take substantially more from the sale than the trust and paying themselves as officers rather than as shareholders; (4) arranging extraordinary compensation for themselves in the year preceding the sale and causing a loss of tax deduction to the trust; (5) issuing an inadequate proxy notice with respect to the sale; and (6) conspiring to accomplish unlawful goals in the sale of the company assets. The trust further alleged that defendant Crist had breached his fiduciary duty to the trust because Crist was, putatively, the sole disinterested board member concerning the asset sale, The trust also asserted that it suffered damages from the respective actions of each individual defendant.

Two days after the trust filed this action, it tendered its shares to the company and exercised its statutory appraisal rights, under § 7-118-101(4), C.R.S.2002, which entitled it to the fair value of its shares immediately before the sale. Another action is currently pending to consider the proper value of the trust's shares.

Defendants moved to dismiss this tort action. Upon consideration of the briefs, the trial court granted their motion and dismissed the action on grounds that the trust's sole remedy is provided by the appraisal statute, § 7-118-101, et seq., C.R.S$.2002. This appeal followed.

The trust contends that the trial court erred when it concluded that appraisal is the trust's exclusive remedy. We agree.

We review de novo a trial court's determination on a motion to dismiss, and we accept as true all averments of material fact contained in the complaint. Scott Sys. v. Scott, 996 P.2d 775 (Colo.App.2000). When ruling on a motion to dismiss a complaint, the court must view the allegations of the complaint in a light most favorable to the plaintiff. Halverson v. Pikes Peak Family Counseling & Mental Health Ctr., Inc., 795 P.2d 1352 (Colo.App.1990). If a plaintiff offers evidence in support of a legally recognized claim for relief, a motion to dismiss must be denied. Davidson v. Dill, 180 Colo. 123, 503 P.2d 157 (1972). Generally, motions to dismiss are not viewed with favor, and are rarely to be granted. See Dunlap v. Colo. Springs Cablevision, Inc., 829 P.2d 1286 (Colo.1992).

The trust argues that it has an action, separate from the share"valuation accounting, against defendants for conduct unrelated to the sale of company assets. Although the trust may not pursue a separate action for certain types of mismanagement, we conclude it may pursue a claim for constructive fraud.

L.

The Colorado Dissenters' Rights Act provides, in relevant part:

A shareholder who demands payment in accordance with subsection (1) of this seetion retains all rights of a shareholder, except the right to transfer the shares, until the effective date of the proposed corporate action giving rise to the shareholder's exercise of dissenters' rights and has only the right to receive payment for the shares after the effective date of such corporate action.

Section 7-113-204(2), C.R.S.2002.

In Colorado, claims of breach of fiduciary duty through mismanagement, self-dealing, and secret profits traditionally have been considered corporation claims, "whether raised by the corporation itself or by the stockholders in a derivative suit." - Ireland v. Wynkoop, 36 Colo.App. 205, 217, 539 P.2d 1349, 1357 (1975). Additionally, the general trend in Colorado has been that claims of waste, mismanagement of assets, or looting must be pursued in a shareholder's derivative suit. River Mgmt. Corp. v. Lodge Props. Inc., 829 P.2d 398, 404 (Colo.App.1991); see also Breniman v. Agric. Consultants, Inc., 829 P.2d 493 (Colo.App.1992)(concluding trial court correctly dismissed plaintiffs personal claims because plaintiff was no longer stockholder and lacked standing to maintain derivative action).

A plaintiff must be a shareholder at the time of the action in question and must continue to be a shareholder throughout the derivative litigation. See Breniman v. Agric. Consultants, Inc., supra.

Here, the trust surrendered its shares in PRC two days after it filed this lawsuit and, thus, lost its right to sue for breach of fiduciary duty through mismanagement of assets, self-dealing, waste, or looting.

IL.

However, the trust asserts that, under the cireumstances here, $ 7-113-102(4) provides an exception to the exclusivity of the dissenters' rights remedy where, as here, the directors' actions are "unlawful or fraudulent with respect to the shareholder or the corporation." We agree.

"A stockholder may maintain a personal action in his capacity as a stockholder only if the actions of the third party that injure the corporation result from a violation of a duty owed to him as a stockholder and ... cause him injury as a stockholder, unique to himself and not suffered by the other stockholders." Nicholson v. Ash, 800 P.2d 1352, 1357 (Colo.App.1990)(citing See Nat'l Bank v. Peters, Writer & Christensen, Inc., 39 Colo.App. 344, 569 P.2d 875 (1977)).

The court's purpose in construing a statute is to give effect to the intent of the General Assembly. Martin v. People, 27 P.3d 846 (Colo.2001). When the language of a statute is unambiguous, we presume it expresses the intent of the General Assembly, and we will apply it as written, without resort to other interpretive rules of construction. People v. Shinaut, 940 P.2d 380 (Colo.1997).

Here, we conclude that the language of the statute is unambiguous and, therefore, we assign to the words their plain meanings.

- Section 7-118-102(4) states:

A shareholder entitled to dissent and obtain payment for the shareholder's shares under this article may not challenge the corporate action creating such entitlement unless the action is unlawful or fraudulent with respect to the shareholder or the corporation.

(Emphasis added.) There are no reported appellate decisions in Colorado construing this section. However, we agree with the trust that this section applies to its claim because fraudulent actions in the nature of constructive fraud are within the exception. See See. Nat'l Bank v. Peters, Writer & Christensen, Inc., supra, 39 Colo.App. at 351, 569 P.2d at 881 (holding breach of fiduciary duty by a director constitutes constructive fraud, and, therefore, affected shareholder was entitled to dissenters' rights and to challenge the corporate action creating entitlement to dissenters' rights).

- Constructive fraud is defined as a breach of duty that the law declares fraudulent because of its tendency to deceive, to violate confidence, or to injure public interests. _" "Neither actual dishonesty nor intent to deceive is an essential element of constructive fraud. Such fraud often arises where a special, confidential or fiduciary relationship exists, which affords the power and means of one to take undue advantage over the other." See. Nat'l Bank v. Peters, Writer & Christensen, Inc., supra, 39 Colo.App. at 351, 569 P.2d at 881 (internal citations omitted; quoting Miller v. First Nat'l Bank, 234 N.C. 309, 67 S.E.2d 362 (1951)).

A.

In the absence of Colorado caselaw respecting § 7-113-102(4), we are persuaded by the decisions of the Delaware courts which, considering similar statutes, allow minority shareholders to maintain actions for breach of fiduciary duty, even where shareholders may take advantage of appraisal rights. In addition, the official comment to the Model - Business - Corporation - Act § 13.02(b), upon which Colorado corporate law is based, states that "if the corporation attempts an action ... by deception of shareholders, or in violation of fiduciary duty ... the court's freedom to intervene should be unaffected by the presence or absence of dissenters' rights." Model Corporation Act § 13.02(b) (citing Weinberger v. UOP, Inc., 457 A.2d 701 (Del.1983)).

In Weinberger v. UOP, Inc., the Delaware Supreme Court held that the appraisal remedy may be exclusive except "where fraud, misrepresentation, self-dealing, deliberate waste of corporate assets, or gross and palpable overreaching are involved." Weinberger v. UOP, Inc., supra, 457 A.2d at 714; see also Rabkin v. Philip A. Hunt Chem. Corp., 498 A.2d 1099 (Del.1985). The majority shareholders bear the burden of proving that they completely disclosed all material facts relevant to the transaction. Weinberger v. UOP, Inc., supra, 457 A.2d at 703.

Additionally, the Delaware Court of Chancery awarded attorney fees when it considered an appraisal exclusivity argument frivolous and in bad faith because previous Delaware cases had clearly established that the appraisal statute was not the plaintiff's exclusive remedy. Nagy v. Bistricer, 770 A.2d 43, 54 (Del.Ch.2000).

Here, we are persuaded by the Delaware courts' treatment as to this issue. Therefore, we conclude that the trial court erred when it dismissed the trust's individual claim of constructive fraud regarding actions unrelated to the WBI sale.

B.

Averments of fraud or mistake must be accompanied by a detailed pleading with a statement of the facts and cireumstances of the fraud or mistake alleged. C.R.C.P. 9(b). Federal Rule of Civil Procedure 9(b) is identical to C.R.C.P. 9(b); and, therefore, federal cases and authorities interpreting the federal rule are persuasive in interpreting the Colorado rule. Faris v. Rothenberg, 648 P.2d 1089 (Colo.1982).

To establish constructive fraud, a plaintiff need not satisfy C.R.C.P. 9(b) requirements that the complaint sufficiently "specify the statements it claims were false or misleading, give particulars as to the respect in which plaintiff contends the statements were fraudulent, state when and where the statements were made, and identify those responsible for the statements." State Farm Mut. Auto. Ins. Co. v. Parrish, 899 P.2d 285, 288 (Colo.App.1994)(quoting 2A Moore's Federal Practice 9.03[1] (1994)); see 5 C. Wright & A. Miller, Federal Practice & Procedure § 1297 (1990); see also Rosales v. AT & T Info. Sys., Inc., 702 F.Supp. 1489 (D.Colo.1988).

Where there is constructive fraud, Fed.R.Civ.P. 9(b) does not apply. Rosales v. AT & T Info. Sys., Inc., supra; see also FDIC v. Wise, 758 F.Supp. 1414 (D.Colo.1991)(denying motion to dismiss for failure to aver fraud with particularity where there was breach of fiduciary duty).

In its complaint, the trust alleged numerous breaches of fiduciary duty, stating that defendants were corporate officers and directors who, in their positions of trust, negotiated an asset purchase and sale agreement in a self-dealing manner; set up distributions for themselves to the detriment of nonofficer shareholders; violated good business practices in paying cash bonuses to themselves and potentially other employees and issuing stock options at prices below market value; failed to seek the highest total price for the PRC assets for the benefit of all shareholders; and failed adequately to disclose material information in connection with the asset purchase agreement.

Upon reviewing all of the averments in the complaint, we determine that, even if these allegations do not contain sufficient particularity to satisfy the requirements of C.R.C.P. 9(b), the complaint can, nevertheless, survive a motion to dismiss, because plaintiff adequately alleged breach of fiduciary duty.

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

Chief Judge HUME and Judge PLANK concur.


author: Judge NEY.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kenneth KITSMILLER, Defendant-Appellant.
    Nos. 01CA0673, 01CA0876.
    Colorado Court of Appeals, Div. III.
    Nov. 21, 2002.
    Certiorari Denied Aug. 18, 2003.

      Ken Salazar, Attorney General, Jess A. Redman, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, Colorado, for Defendant, Appellant.

       Justice MARTINEZ would grant as to the following issues:
      Whether the court of appeals failed to follow Benz v. People, 5 P.3d 311 (Colo.2000) and erred in concluding that, when the court acts as the referring agency pursuant to section 17-27-104(6), C.R.S., it satisfies the statutory requirement of an administrative review process when it performs no review at all.
      Whether Petitioner's sentence is illegal because, contrary to this right to due process of law, he did not receive an evidentiary hearing on his allegation that he did not violate any of the terms or conditions of his community corrections placement.

   Opinion by

Judge NEY.

Defendant, Kenneth Kitsmiller, appeals his sentence to the Department of Corrections (DOC) imposed upon termination of his placement in a community corrections program. He also appeals the denial of his Crim. P. 85(a) motion to correct an allegedly illegal sentence. We affirm.

Defendant pleaded guilty to felony menacing and was sentenced by the trial court, after making appropriate findings of extraordinary aggravating cireumstances, to a community corrections program for a term of five years. After defendant began serving the sentence, the program filed a complaint to terminate his placement. The trial court, without making new findings or providing an evidentiary hearing, resentenced defendant to DOC for the remainder of his five-year sentence.

L.

Defendant contends that the trial court violated his right to procedural due process by not granting him an evidentiary hearing concerning the termination of his placement in community corrections. We do not reach this issue because it was not raised in the trial court.

Constitutional claims not presented to the trial court will not be considered on appeal. People v. Cagle, 751 P.2d 614 (Colo.1988); People v. Boyd, 30 P.3d 819 (Colo.App.2001).

Here, during the transfer hearing, defendant did not request that an evidentiary hearing be conducted by the trial court. Nor did he raise this issue in his Crim. P. 35(a) motion. Thus, we will not consider the merits of this claim on appeal.

IL

Defendant contends that he did not receive his statutory right to an administrative review process. We disagree.

Contrary to the People's assertion, defendant raised this argument in the trial court. The record reflects that defendant's request for an administrative review was denied by the trial court during the resentencing. Accordingly, we will address the merits of this claim.

Upon termination from community corrections, an offender must be provided with: (1) written or actual notice of rejection from community corrections and the reasons for rejection; and (2) an informal review of the facts underlying the rejection. The trial court can provide such notice and review at the sentencing hearing. Section 17-27-103(7), C.R.$.2002; Benz v. People, 5 P.3d 311 (Colo.2000).

Informal review in this cireum-stance requires that the trial court either: (1) review on the record the facts underlying the rejection on the record; or (2) demonstrate a familiarity with those facts through documentation in the record regarding the rejection. See Beng v. People, supra (trial court reviewed facts on the record); People v. Rogers, 9 P.3d 371 (Colo.2000)(documents supporting rejection in trial court record). No substantive evaluation of the veracity of the facts or the merits of the rejection is required, because a community corrections program can reject an offender for any reason or no reason, and the trial court has no power to alter the rejection. See People v. Abdul, 935 P.2d 4 (Colo.1997); People v. Wilhite, 817 P.2d 1017 (Colo.1991).

Here, defendant was given actual notice of his rejection from the community corrections program and the reasons for this rejection. Furthermore, the record contains the request for transfer and the letter from community corrections detailing the facts and reasons underlying the rejection. Thus, we conclude that defendant received his statutory right to an administrative review.

IIL.

Defendant contends that the trial court erred by imposing a sentence beyond the presumptive range without making specific findings. We disagree.

In sentencing a defendant to a term outside the presumptive sentencing range, a trial court must make specific findings on the record to detail the specific extraordinary aggravating cireumstances that provide reasons for varying from the presumptive range. Section 18-1.83-401(7), C.R.8.2002.

Defendant relies upon People v. Arnold, 907 P.2d 686 (Colo.App.1995), for the proposition that his resentencing to DOC following termination of placement with community corrections was a new sentence and the trial court was thus required to make specific findings at the resentencing hearing. However, the division in Arnold considered a resentence as a new sentence only for the purposes of calculating time for filing a Crim. P. 35(b) motion. Because in Arnold the Crim. P. 85(b) motion would have been time barred, the defendant there faced substantial prejudice if the resentence were not considered a new sentence.

Therefore, we conclude that the rationale underlying Arnold is not applicable to the facts here. When the original sentence is not changed and the defendant is given full credit for the time served in community corrections, there is no prejudice to the defendant from the failure of the trial court to restate its findings justifying an aggravated sentence, because evidence of the court's rationale already exists on the record. See People v. Watkins, 200 Colo. 163, 613 P.2d 633 (1980)(sentencing court must make findings to allow an appellate court to determine the bases for the sentence imposed); People v. Malone, 923 P.2d 163 (Colo.App.1995).

Here, because the trial court made the required findings at the original sentencing hearing and only the remainder of the original sentence was imposed, defendant suffered no prejudice from the lack of new findings at the resentencing hearing. Accordingly, we hold that under these cireum-stances, new findings to support the aggravated range sentence are not required. As a result, we find no error here.

IV.

Defendant contends that the trial court abused its discretion in imposing a sentence outside the presumptive range. We disagree.

A sentencing court may impose a sentence up to twice the maximum authorized in the presumptive range if it finds the presence of extraordinary aggravating circumstances. - See Section 18-1.3-401(6), C.R.S.2002. Extraordinary aggravating circumstances include "unusual aspects of the defendant's character, past conduct, ... the events surrounding the erime, [a] pattern of conduct which indicates whether [the defendant] is a serious danger to society, past convictions, and the possibility of rehabilitation." People v. Walker, 724 P.2d 666, 670 (Colo.1986)(quoting People v. Phillips, 652 P.2d 575, 580 (Colo.1982)).

A trial judge has broad discretion when imposing a sentence, and if the sentence is based upon appropriate considerations as reflected in the record and is factually supported by the cireumstances of the case, we will not disturb this exercise of discretion. People v. Fuller, 791 P.2d 702 (Colo.1990).

Here, defendant pleaded guilty to felony menacing, a class five felony that carries a presumptive sentence of one to three years. In sentencing defendant to five years, the court considered the nature of the offense, defendant's behavioral history, the risk of future criminal conduct, and his rehabilitative potential. Thus, we conclude that the trial court weighed the relevant factors and did not abuse its discretion in sentencing.

The sentence and order are affirmed.

Judge KAPELKE and Judge NIETO concur.