author: Judge DAVIDSON.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee and Cross-Appellant, v. Jacques RICHARDSON, Defendant-Appellant and Cross-Appellee.
    No. 99CA1230.
    Colorado Court of Appeals, Div. V.
    Feb. 14, 2002.
    Rehearing Denied April 4, 2002.
    Certiorari Denied Dec. 2, 2002.

      Ken Salazar, Attorney General, Elizabeth Rohrbough, Assistant Attorney General, Denver, Colorado; A. William Ritter, Jr., District Attorney, Robert J. Whitley, Deputy District Attorney, Denver, Colorado, for Plaintiff-Appellee and Cross-Appellant.
    David S. Kaplan, Colorado State Public Defender, Christopher H. Gehring, Andrew C. Heher, Deputy State Public Defenders, Denver, Colorado, for Defendant-Appellant and Cross-Appellee.

      , Justice RICE and Justice COATS do not participate.

   Opinion by

Judge DAVIDSON.

Defendant, Jacques Richardson, appeals from the judgment of conviction entered upon jury verdicts finding him guilty of felony murder, second degree murder, and second degree burglary. By cross-appeal, the People seek disapproval of a trial court ruling precluding consideration of certain aggravating factors for purposes of capital sentencing. Because no sentence of death was imposed, we have jurisdiction over this appeal and cross-appeal. Sections 16-12-202(2) and 207, C.R.S.2001. See also Crim. P. 32.2, § 13-4-102(l)(h), C.R.S.2001. We agree with the People and otherwise affirm.

Police observed defendant leaving the victim’s apartment through a window and subsequently arrested him. The victim was found hog-tied and not breathing inside the apartment. Although briefly resuscitated, the victim never regained consciousness and subsequently died from brain damage caused by ligature strangulation.

Defendant was charged with first degree murder after deliberation, first degree felony murder, and second degree burglary. The jury found defendant guilty as charged on the latter two counts, but on the first charge found defendant guilty of the lesser included offense of second degree murder. Defendant was sentenced to a single term of life imprisonment without parole.

I.

Defendant first contends that his constitutional right to a fair trial was violated when the trial court denied his challenges for cause to two jurors. We disagree.

An impartial jury is fundamental to a defendant’s constitutional right to a fair trial. Morrison v. People, 19 P.3d 668 (Colo.2000). A trial court must sustain a challenge for cause if there exists “a state of mind in the juror evincing enmity or bias toward the defendant or the state,” unless the court is satisfied that the juror “will render an impartial verdict according to the law and the evidence submitted to the jury.” Section 16-10-103(l)(j), C.R.S.2001; Crim. P. 24(b)(l)(X).

Trial courts have considerable discretion in ruling on challenges for cause because the trial judge is in the best position to assess the credibility, demeanor, and sincerity of the potential juror’s responses, including statements that linguistically may appear to be inconsistent. Rulings on such challenges are reviewed under an abuse of discretion standard. Carrillo v. People, 974 P.2d 478 (Colo.1999). A ruling will be reversed as an abuse of discretion only if there is no evidence in the record to support it. People v. O’Neal, 32 P.3d 533 (Colo.App. 2000). See also People v. Young, 16 P.3d 821, 825 (Colo.2001)(“Reversals on juror challenges, however, should be rare.”).

A.

Defendant contends that the trial court erred in denying bis challenge for cause to a juror who had multiple associations with law enforcement personnel. Specifically, defendant argues that the juror’s statements indicated a belief that police officers are more credible than other witnesses and also indicated bias in conjunction with the juror’s extensive contacts with law enforcement personnel. We disagree.

The potential juror stated that his brother-in-law was a Denver sheriff, and when asked if he had a law enforcement background, the juror stated that his family “surrounds it.” Specifically, he had several friends in law enforcement, he had grown up around police, and he was attempting to gain employment in law enforcement, but ultimately wanted to transfer to the fire department.

The juror was asked whether, assuming a police officer and another citizen both observed an event, he would believe the police officer more because of his or her status, and he responded “possibly.” After another juror stated that she had compassion for police officers that would sometimes cause her to attribute more reliability to their testimony because of their status and that would give her some pause about her ability to be fair, the following exchange occurred between the challenged juror and defense counsel:

[Defense counsel]: Would that be true for you? You know, there is going to be a police officer and there may be officers that are identified as forensic scientists, because you will hear they are police officers and forensic scientists that maybe you are going, to give them a little more weight?
[Prospective juror]: I would have to assume yes, because police officers are the one people [sic] in this world that we are supposed to trust if we have a problem. If they can’t be fair and honest, [whom] can you trust?

However, when asked if his relationships would create a bias toward the prosecution, he stated:

I look at it this way, if the prosecution can prove their case, then they have got it, hands down. I’m not going to sit here and say just because my brother is a cop does not mean that law enforcement is always correct. But at the same time, both sides have to prove their point to me.

The juror indicated that he understood the defense had no burden, that his relationships would not interfere with his ability to hold the prosecution to its burden of proving every element, and that both sides would get a fair trial from him. He indicated that he would critically evaluate the testimony of law enforcement personnel, stating that he would give weight to the testimony of an expert who could prove something “beyond a doubt,” but he could not completely trust mere allegations, and that he would believe a witness who saw the actual incident over a police officer who did not.

Despite defendant’s argument to the contrary, the circumstances here are not distinguishable from those in People v. Vigil, 718 P.2d 496 (Colo.1986). Considering the entire voir dire of this potential juror, there is evidence to support a finding that the juror would be impartial and decide the case on the law and the evidence. Therefore, the trial court did not abuse its discretion in denying defendant’s challenge for cause.

B.

Defendant challenged a second juror based on her views on the death penalty and previous traumatic experiences. Again, we conclude that the trial court did not abuse its discretion in denying the challenge for cause.

The juror indicated that she had “mixed emotions” on the death penalty, and when asked whether she could decide the case on the evidence without regard to sentencing issues, she responded: “Well, I’m human, and you know [I] definitely would give it my best shot. But there are no guarantees.” However, she could not say whether her views would create a bias in favor of either the defense or the prosecution, indicating that it would depend on the circumstances. When asked whether she could return a guilty verdict despite her views if the prosecution proved all elements beyond a reasonable doubt, she responded: “I think I have always said if there is a smoking gun and two reliable witnesses and probably — yeah, I don’t think it [would] be a problem there.”

The juror also indicated that she had a personal traumatic experience in her past and that a family friend had been murdered at an early age. When asked by the prosecutor whether she could set these experiences aside, she responded: “Here again, I would like to think so, but I’m human and, you know, I would hope that I could do that. But there are no guarantees. I want to be honest. I’m sharing with you.” In response to a similar question posed by defense counsel she stated: “I would hope I can be fair, but I don’t know. We had a traumatic experience and, you know, sometimes it stays with you.” However, when asked whether she would pick herself as a juror if she were the prosecution or the defense, she responded: “I don’t know.... I don’t know the criteria you would use. I’m trying to be honest with you.... I believe in the jury system and the way it works and everyone’s due process. A fair trial.”

The juror consistently stated that she would do her best to fulfill her duties as a juror and at no time stated that she could not or would not act impartially or that she had a bias in favor of or against either side. See People v. O’Neal, supra. Thus, the record suppoi'ts the trial court’s ruling, and it was not an abuse of discretion to deny defendant’s challenge for cause.

n.

Defendant next contends that the information was insufficient as to the burglary charge because it did not fully advise him of the charges he was facing and prevented him from adequately preparing for trial. We disagree.

An information must provide the defendant with sufficient notice of the charged offenses and factual circumstances to allow adequate trial preparation, and it must protect the defendant from subsequent prosecution for the same offense. People v. Pollard, 3 P.3d 473 (Colo.App.2000). However, it is not necessary to allege every element that must be proved at trial. People v. Moran, 983 P.2d 143 (Colo.App.1999).

The information here alleged that defendant entered the apartment with “the intent to commit therein the crimes of Assault, Robbery, and False Imprisonment or other crimes against a person or property.” Defendant argues the “other crimes against a person or property” portion of the allegation was too vague to allow adequate trial preparation because, defendant contends, it failed to specify the underlying offense of the burglary charge. We disagree.

We first note that, while the People assert that defendant failed to raise this issue in a pretrial motion, defendant filed a motion for a bill of particulars, requesting the legal and factual elements of the assault, robbery, false imprisonment, and “other crimes against person or property” charges. Defendant also filed a motion to strike all counts of the information on grounds that it did not provide adequate notice or opportunity to prepare for trial, and he raised the issue again when tendering proposed jury instructions. We therefore reject the prosecution’s argument that defendant waived any objection to the form of the information.

However, notwithstanding defendant’s argument that the ease was wrongly decided, according to People v. Williams, 984 P.2d 56 (Colo.1999), an information is substantively sufficient if it tracks the language of the pertinent statute.

Here, the information included specific underlying offenses' — assault, robbery, and false imprisonment — and tracked the general language of the second degree burglary statute in effect at the time. The statute then defined the offense in the following terms: “A person commits second degree burglary, if he knowingly breaks an entrance into, or enters, or remains unlawfully in a building or occupied structure with intent to commit therein a crime against a person or property.” 1971 Colo. Sess. Laws, ch. 121 at 427 (now codified with amendments at § 18-4-203).

Defendant argues that inclusion of the “other crimes against a person or property” language allowed the prosecution to introduce evidence of any number of underlying crimes of which he was not apprised. While the People now argue that the “other crimes” language was mere surplusage, such extraneous language may constitute a defect in form. See People v. Dickinson, 197 Colo. 338, 592 P.2d 807 (1979).

The failure to specify an underlying offense is a defect in form, rather than substance. When the alleged defect in an information is one of form, the defendant must demonstrate prejudice from the lack of specificity; if the defendant had adequate notice of the underlying offense, then reversal is not warranted. People v. Williams, supra.

Here, even if the additional language were a defect in form, defendant has not demonstrated any resulting prejudice. Specifically, the trial court’s order denying defendant’s motion for a bill of particulars stated that “[the] District Attorney announced in open court that assault is the object crime of the burglary charged as the predicate offense for the felony murder [count].” At a hearing on the admissibility of prior acts of unlawful entry of women’s apartments and sexual assault, the prosecutor agreed that the predicates to the burglary charge were third degree assault and simple robbery, and defense counsel noted that false imprisonment was also an alleged predicate and conceded that defendant had committed false imprisonment by tying the victim. Moreover, in arguing against the admissibility of the prior acts, counsel for defendant noted that the prosecution was not charging intent to commit sexual assault, and the prosecutor did not argue to the contrary. Nor did the prosecutor suggest other underlying offenses.

While defendant argues that he was forced “to defend against evolving prosecutorial theories” and was “oppressed by the introduction of evidence which he [could] not be prepared to meet,” the record does not indicate that the prosecution attempted to introduce any evidence of predicate crimes other than robbery, assault, and false imprisonment. During trial, the court dismissed the robbery allegation, and the jury was instructed only on false imprisonment and third degree assault as underlying crimes for the burglary.

Thus, we conclude that defendant had sufficient notice of the elements and factual basis for these charges prior to trial. Hence, any error in the form of the information was harmless. See People v. Williams, supra.

III.

Defendant next contends that a mannequin used by the prosecutor during trial to demonstrate the manner in which the victim was tied was highly prejudicial, and the trial court erred by allowing the prosecutor to make extensive use of it. Additionally, defendant argues that the mannequin was hearsay, and its use resulted in improper bolstering of witness testimony because the exhibit was prepared collaboratively. We disagree.

Neither the mannequin itself nor any photographs of it were included in the record on appeal. Thus, we presume that the trial court appropriately exercised its discretion in balancing the probative value and prejudicial effect of the mannequin under CRE 403. See People v. Ullery, 984 P.2d 586 (Colo.1999). We also note, however, that based on the description of the mannequin in the parties’ briefs, this case is readily distinguishable from People v. Blue, 189 Ill.2d 99, 244 Ill.Dec. 32, 724 N.E.2d 920 (2000), cited by defendant, in which a life-size mannequin torso wearing a blood and brain spattered police uniform was provided to the jury along with rubber gloves.

In any event, the mannequin here was not admitted as substantive evidence, but was used only demonstratively. To be admissible for such purpose, demonstrative or illustrative evidence must be shown to be reasonably accurate and correct, and admission of such evidence is within the trial court’s discretion. Martinez v. W.R. Grace Co., 782 P.2d 827 (Colo.App.1989). It is not necessary that the witness whose testimony is illustrated has personally prepared the evidence. McGovern v. Bd. of County Comm’rs, 115 Colo. 347, 173 P.2d 880 (1946).

However, testimony regarding the accuracy of demonstrative evidence must be given by a person having personal knowledge of the scene depicted and may not be based on hearsay statements. See Gosser v. Commonwealth, 31 S.W.3d 897 (Ky.2000). If the demonstrative evidence illustrates the testimony of a witness with such personal knowledge, it is not hearsay. State v. Randolph, 190 Conn. 576, 462 A.2d 1011 (1983). The statements authenticating the demonstrative evidence are subject to cross-examination regarding their accuracy. It is these authenticating statements that allow admission of the evidence despite the hearsay rule. State v. Furlough, 797 S.W.2d 631 (Tenn.Crim.App.1990).

Here, testimony regarding the accuracy of the mannequin was given by a police officer and a paramedic who responded to the scene and observed the victim tied up in her apartment. Because these witnesses had personal knowledge of how the victim was tied, the mannequin illustrating their testimony was not hearsay.

Similarly, the mannequin did not, as defendant asserts, constitute a prior consistent statement impermissibly used to bolster the testimony of each witness who assisted in its preparation. The definition of a “statement” includes “nonverbal conduct of a person, if it is intended by him to be communicative.” CRE 801(a). As discussed, however, the tying of the mannequin was not a statement, but was an illustration of trial testimony. Moreover, the circumstances of the tying of the mannequin and inconsistencies in the witnesses’ recollections were subject to cross-examination. See Arnold v. Burlington N. R.R. Co., 89 Or.App. 245, 748 P.2d 174 (1988).

IV.

Defendant also contends that the trial court erred in denying his motion for a mistrial because a comment made by the prosecutor in closing argument highlighted defendant’s failure to make a statement to police and thus violated his constitutional right to remain silent and right to a fair trial. Again, we disagree.

Defendant challenges the following statement made by the prosecutor in rebuttal closing argument: “Do you seriously think he knew the cop was standing out there when he jumped out the window? And when he does, does he say, ‘oh, stop, there is a woman in there that will need your assistance’ or does he try to— ” Defense counsel objected before the prosecutor could continue, and after the court overruled the objection, it directed the prosecutor to move on. Later, the court denied defendant’s motion for a mistrial.

A prosecutor may not refer to a defendant’s silence during custodial interrogation to create an inference of guilt because such comment penalizes the defendant for exercising his or her constitutional right to remain silent and violates due process of law. People v. Hardiway, 874 P.2d 425 (Colo.App.1993). Here, however, there was no reference to silence in the face of custodial police interrogation. At the time of the referenced silence, defendant was not in custody, and there was no interrogation. Nor is there any indication that defendant was invoking his right to remain silent. See United States v. Burson, 952 F.2d 1196 (10th Cir.1991).

Comment on a defendant’s noncustodial silence before receiving a Miranda warning, although not of constitutional import, can, however, raise evidentiary concerns. The primary rationale for excluding such reference is that under the rules of evidence, such silence and the inferences to be drawn therefrom are often irrelevant. People v. Quintana, 665 P.2d 605 (Colo.1983); People v. Mares, 705 P.2d 1013 (Colo.App.1985).

Here, ■ the prosecutor’s statement was not admitted as substantive evidence but was made in rebuttal closing argument. A trial court has discretion in determining whether a prosecutor’s statements constitute inappropriate prosecutorial argument, and it should consider the context in which the statements were made. See Harris v. People, 888 P.2d 259, 264-65 (Colo.1995). See also People v. Williams, 996 P.2d 237, 244 (Colo.App.l999)(reviewing court takes into account defense counsel’s “opening salvo”).

A trial court is in the best position to evaluate the effects of allegedly prejudicial statements made by a prosecutor, and the grant or denial of a mistrial is within the discretion of the trial court. People v. Elliston, 181 Colo. 118, 508 P.2d 379 (1973). A denial of a motion for a mistrial is reviewed for an abuse of discretion, and “[a]n appellate court will not grant a new trial on the basis of prosecutorial misconduct unless the prejudice created thereby was so great as to result in a miscarriage of justice.” People v. Harris, 914 P.2d 425, 432 (Colo.App.1995).

Here, we agree with the trial court that, understood in context, the comment was not improper. Rather, it was a fair response both to defense counsel’s speculation that defendant believed at the time he left that the victim would live and to defendant’s argument that his interaction with the police officer demonstrated his nonviolent nature, and it was therefore relevant.

Moreover, the prosecutor’s comment was not flagrant and was merely an isolated reference. Thus, considering the closing arguments as a whole, we conclude that the trial court did not abuse its discretion in denying the motion for a mistrial.

V.

The jury did not convict defendant of first degree intentional murder after deliberation, but instead convicted him of the lesser included offense of second degree murder (knowingly killing the victim). At the death penalty phase of the proceedings, the trial court determined, based on principles of collateral estoppel, that the jury’s verdict precluded consideration by the three-judge panel of aggravating factors based on an intentional killing, including those contained in § 16-ll-103(5)(g) and (k), C.R.S.2001. The trial court acknowledged that the jury did not necessarily find that defendant had acted unintentionally, but determined that it was “more likely than not” that the jury had so concluded. Therefore, the court precluded the prosecution from raising the aggravating factors based on intentional killing.

The People cross-appeal this ruling pursuant to § 16-12-102(1), C.R.S.2001. The People argue that the trial court applied the wrong standard and that, properly applied, the doctrine of collateral estoppel would not have barred consideration of the requested aggravating factors. We agree.

A.

As a preliminary matter, we address the timeliness of the People’s appeal. Defendant argues, under a variety of theories, that the People were required, under § 16-12-102(1), to appeal within forty-five days of the trial court’s ruling at issue here. We disagree.

Generally, interlocutory appeals authorized by statute are permissive rather than mandatory, and failure to pursue an immediate appeal does not preclude appeal of the issue when it merges into the final judgment. In re Application of Northwestern Mutual Life Ins. Co., 703 P.2d 1314 (Colo.App.1985). See also Prefer v. PharmNetRx, LLC, 18 P.3d 844 (Colo.App.2000).

Although § 16-12-102(1) does not characterize the “immediate appeals” permitted therein as “interlocutory,” this general rule is equally applicable to allow appeals under that section to be filed within forty-five days after final judgment. Cf. People v. Gallegos, 946 P.2d 946, 952 (Colo.l997)(a decision appeal-able under § 16-12-102(1) “is not a final order in the sense of being a final disposition of the case,” but rather is “an interlocutory order which the General Assembly determined should be treated as if it were a final order for purposes of permitting immediate appellate review before the case is concluded”). See also People v. Lewis, 791 P.2d 1152 (Colo.App.l989)(appeal under § 16-12-102(1) considered after the entire case was resolved).

Moreover, while the language of § 16-12-102(1) permits immediate appeal of certain specified issues, it does not preclude deferring an appeal until after a final judgment. Section 16-12-102(1) permits the prosecution to appeal “any decision of a court in a criminal case upon any question of law” pursuant to the procedural rules of the Colorado Supreme Court. The procedural rules, in turn, permit appeal from a “final judgment,” C.A.R. 1(a)(1), and require that the People’s appeal be filed within forty-five days of the entry of judgment or order appealed from. C.A.R. 4(b)(2).

A trial court order precluding consideration of aggravating factors for sentencing purposes does not end the litigation between the parties, but in the absence of an immediate appeal, remains modifiable until a final judgment is entered. Cf. Jouflas v. Wyatt, 646 P.2d 946 (Colo.App.1982). A judgment is final in a criminal case only after the defendant is acquitted, the charges are entirely dismissed, or the defendant is convicted and a sentence is imposed. Crim. P. 32(c); Ellsworth v. People, 987 P.2d 264 (Colo.1999). Here, the People’s appeal was filed within forty-five days of defendant’s sentencing and was, therefore, timely.

B.

Defendant contends that the People’s appeal requires review of the trial court’s analysis of the evidence, arguments, and jury verdicts at trial, rather than a pure question of law, and is therefore not permitted under § 16-12-102(1). Defendant also contends that the appeal is moot because the People have no remedy and suffered no prejudice. We disagree with both contentions.

1.

A determination of the proper legal standard and application of that standard to particular facts is a question of law. People v. Haley, 41 P.3d 666 (Colo.2001).

Here, the People do not challenge the trial court’s ruling that the jury did not necessarily decide that defendant acted unintentionally but rather only challenge the court’s use of a “more likely than not decided,” rather than an “actually and necessarily decided” standard for collateral estoppel. Moreover, consideration of the instructions provided to the jury allows resolution of the issue without regard to the evidence presented. See People v. Badhawk, 761 P.2d 753 (Colo.1988).

2.

Defendant argues that the People’s appeal is moot because defendant cannot be resentenced, citing People v. Martinez, 22 P.3d 915 (Colo.2001). The People, however, are not challenging the sentence imposed by the three-judge panel but only the ruling of the trial court precluding consideration of certain aggravating factors. Moreover, to the extent the People lack a remedy because a defendant may not be resentenced, such lack of remedy does not require or permit dismissal of the appeal. See C.A.R. 4(b)(2); People v. Jackson, 972 P.2d 698 (Colo.App.1998).

Defendant further contends that the cross-appeal is moot because the three-judge sentencing panel ultimately considered the issue of defendant’s intent as a mitigating factor. The panel did not, however, consider the issue as an aggravating factor, and therefore the appeal is based on an alleged error that was prejudicial to the People. See People v. Wolff, 111 Colo. 46, 137 P.2d 693 (1943).

C.

As to the merits of their argument, the People contend that the trial court applied an improper collateral estoppel standard when it determined that the intent issue was precluded because it was “more likely than not” that the jury found a lack of intent. The People rely on Schiro v. Farley, 510 U.S. 222, 114 S.Ct. 783, 127 L.Ed.2d 47 (1994), and assert that the jury verdict did not preclude consideration of the aggravating factors for sentencing because defendant had not met his burden of establishing that the issue of intent had been “actually and necessarily decided” in his favor. We agree.

Collateral estoppel has been applied in the criminal context and requires, inter alia, that the issue to be precluded has been “actually and necessarily decided” in prior litigation. Schiro v. Farley, supra, 510 U.S. at 236, 114 S.Ct. at 792, 127 L.Ed.2d at 60-61. Accord People v. Smith, 938 P.2d 111, 113 (Colo.1997)(“The fundamental principle of collateral estoppel is that the defendant should be protected from having to relitigate an issue of ultimate fact once that issue has been determined by a valid and final judgment.”); People v. Allen, 944 P.2d 541 (Colo.App.1996).

Here, the parties agree that the issue of defendant’s intent was “actually litigated,” that is, the issue was raised in the earlier trial proceeding, but they do not agree that the issue was “necessarily adjudicated,” that is, a determination of that issue was necessary to the judgment. See Bebo Constr. Co. v. Mattox & O’Brien, P.C., 990 P.2d 78 (Colo.1999).

An issue is not necessarily adjudicated, and thus is not barred by collateral estop-pel, if a rational jury could have based its verdict upon a conclusion of ultimate fact other than that which the defendant seeks to preclude. See Schiro v. Farley, supra; People v. Smith, supra.

The jury here was instructed that the elements of first degree murder after deliberation included both intent and deliberation, while the elements of second degree murder required only a mental state of “knowingly.” These instructions reflect that the jury’s verdict could have been based, inter alia, on agreement that defendant intended to kill the victim but disagreement as to whether he formed this intent after deliberation. Cf. People v. Morgan, 637 P.2d 338 (Colo.1981).

Once a jury has concluded that the element of “after deliberation” has not been proved beyond a reasonable doubt, it must acquit a defendant of first degree intentional murder after deliberation regardless whether it believes the defendant acted with intent. Thus, a finding that defendant lacked intent was not necessary to the judgment because the jury’s verdict here could have been reached without making such a finding. Therefore, regardless of what was “likely” to have happened, under the proper standard for the application of collateral estoppel, the issue was not “necessarily decided.” See Bebo Constr. Co. v. Mattox & O’Brien, P.C., supra, 990 P.2d at 86 (“issues that were actually litigated and decided, but were not necessary to the final outcome of the case, are not subject to collateral estoppel in a future case”).

Defendant’s argument to the contrary notwithstanding, People v. Harlan, 8 P.3d 448 (Colo.2000), does not require a different result. Under Harlan, “after deliberation” is considered to be a part of the specific intent element of first degree murder. However, Harlan indicates only that “after deliberation” includes the concept of intent, and not that intent includes the concept of “after deliberation.” The trial court correctly recognized this difference when it determined that the only outcome the jury could not have reached was that defendant acted deliberately but without intent.

Because defendant did not carry his burden of demonstrating that the issue of intent had been decided by the jury in his favor and that such a finding was necessary to the judgment, we need not decide whether collateral estoppel, or some other form of issue preclusion, is otherwise applicable in these circumstances.

The trial court’s ruling that collateral es-toppel bars consideration of an issue “more likely than not” decided by the jury is disapproved. The judgment is affirmed.

Judge CASEBOLT and Judge NIETO concur.


source: Caselaw Access Project

author: Judge NIETO.

license: Public Domain

text:
    Debbie LEITING, Plaintiff-Appellee, v. Vinay MUTHA, Defendant-Appellant.
    No. 00CA2227.
    Colorado Court of Appeals, Div. V.
    Feb. 28, 2002.
    Certiorari Denied Dec. 16, 2002.

      Walter H. Sargent, P.C., Walter H. Sargent, Colorado Springs, Colorado; Law Offices of David H. Pearlman LLC, David H. Pearlman, Colorado Springs, Colorado, for Plaintiff-Appellee.

      Hall & Evans, L.L.C., Alan Epstein, Denver, Colorado; Hanson & Associates, Stuart K. Theodore, Greenwood Village, Colorado, for Defendant-Appellant.
   Opinion by

Judge NIETO.

Defendant, Vinay Mutha, appeals the judgment entered in favor of plaintiff, Debbie Leiting, after a jury trial. We reverse and remand for a new trial.

Plaintiff brought this negligence action against defendant for damages resulting from an automobile collision. Defendant admitted that he was negligent in causing the accident but disputed the cause and extent of plaintiffs injuries.

At trial, plaintiff sought, pursuant to CRE 803(8)(C), to introduce the decision of an Administrative Law Judge (ALJ) rendered in a Social Security Administration hearing involving the plaintiff and a depression inventory prepared by a doctor who had examined plaintiff but did not testify at the trial. The depression inventory was a printed form containing handwritten numerical values for certain symptoms and for three items identified only by initials. It also contained a handwritten statement, “Findings consistent [with] moderate to severe depression.” Defendant objected on the grounds that each document contained inadmissible hearsay. The trial court overruled the objections and admitted the documents. The jury returned a verdict in favor of plaintiff, and the trial court entered judgment accordingly.

I.

Relying on CRE 805, defendant contends that, even if the ALJ’s decision was otherwise admissible under CRE 803(8), it was inadmissible here because it contained statements by doctors that were hearsay and that were not subject to any exception to the hearsay rule. We agree.

“ ‘Hearsay’ is a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” CRE 801(c). Hearsay is inadmissible unless it falls within a statutory exception or an exception found in the Colorado Rules of Evidence. CRE 802; Schmutz v. Bolles, 800 P.2d 1307 (Colo.1990). Hearsay within hearsay is admissible only if each part of the combined statements conforms with an exception to the hearsay rule. CRE 805.

Barring a lack of trustworthiness, records, reports, statements, or data compilations of public offices or agencies offered in a civil proceeding that set forth factual findings resulting from an investigation made pursuant to authority granted by law are admissible as an exception to the hearsay rule. CRE 803(8)(C); Kelln v. Colorado Department of Revenue, 719 P.2d 358 (Colo.App.1986).

The federal rule, Fed.R.Evid. 803(8), is nearly identical to CRE 803(8). Cases interpreting a similar federal rule of evidence are instructive, People v. Segura, 923 P.2d 266 (Colo.App.1995), and so we consider such cases here.

To be admissible under Fed. R.Evid. 803(8)(C), “a report must first be a set of ‘factual findings.’ ” Bright v. Firestone Tire & Rubber Co., 756 F.2d 19, 22 (6th Cir.1984). Further, a statement in a report must be the conclusion of an agency, rather than the mere accumulation of information. See McCormick on Evidence § 296 (J. Strong 5th ed.1999); see also United States v. Ortiz, 125 F.3d 630 (8th Cir.1997); United States v. Mackey, 117 F.3d 24 (1st Cir.1997). “[P]ortions of investigatory reports otherwise admissible under Rule 803(8)(C) are not inadmissible merely because they state a conclusion or opinion. As long as the conclusion is based on a factual investigation and satisfies the Rule’s trustworthiness requirement, it should be admissible along with other portions of the report.” Beech Aircraft Corp. v. Rainey, 488 U.S. 153,170,109 S.Ct. 439, 450, 102 L.Ed.2d 445, 463 (1988)(discussing admissibility of investigators’ opinions and conclusions).

Only those portions of a record or report that set forth factual findings resulting from an investigation made pursuant to authority granted by law are admissible under CRE 803(8)(C). See Thirsk v. Ethicon, Inc., 687 P.2d 1315 (Colo.App.l983)(portions of report that were either matters observed pursuant to a duty imposed by law or factual findings resulting from an investigation made pursuant to authority granted by law were admissible under CRE 803(8)).

Statements are not automatically admissible under CRE 803(8) merely because they are contained in a public report. See Parsons v. Honeywell, Inc., 929 F.2d 901 (2d Cir.l991)(while police report itself would be admissible as a public record under Fed. R.Evid. 803(8), statement made to officer was inadmissible unless it qualified under some other exception to the hearsay rule); United States v. De Peri 778 F.2d 963 (3d Cir.1985)(while Fed.R.Evid. 803(8)(B) would permit the introduction of FBI records, hearsay statements contained in the reports inadmissible without separate hearsay exception).

Here, the ALJ’s decision contained a recitation of the evidence presented at the Social Security hearing, including statements attributed to various doctors regarding plaintiffs condition. These statements were not factual findings or conclusions of the Social Security Administration, but rather a summary of the evidence presented at the hearing. As such, they do not fall within the exception to the hearsay rule under CRE 803(8)(C). Thus, the statements are hearsay and inadmissible unless they qualify under another hearsay exception.

Plaintiff argues that these statements are admissible under the hearsay exception in CRE 803(4), which allows admission of statements made for purposes of medical diagnosis or treatment. However, the statements in question do not meet the requirements of this rule because they are statements of the physician’s diagnosis, rather than the patient’s recitation of information necessary for diagnosis or treatment. The exception in CRE 803(4) typically applies to statements made to a physician for the purpose of obtaining medical diagnosis or treatment. See, e.g., King v. People, 785 P.2d 596 (Colo.1990); People v. Perez, 972 P.2d 1072 (Colo.App.1998). Plaintiff cites no case, and we are aware of none, holding that CRE 803(4) applies to statements by physicians describing their diagnosis or treatment of a patient. Thus, CRE 803(4) does not extend to such statements in the ALJ’s decision.

Plaintiff also argues that the statements are admissible under CRE 803(6) as medical records kept in the regular course of business. CRE 803(6) allows the admission of reports, records, or data compilations of acts, events, conditions, opinions, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the reports, records, or data compilations, all as shown by the testimony of the custodian. The term “business” as used in CRE 803(6) includes any “business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.”

However, the statements in question do not meet the requirements of CRE 803(6). The statements are not medical records, but rather the ALJ’s summary of medical records. The statements are an interpretation of the medical records, and the actual records were not submitted to the trial court. Further, neither the custodian of the records nor any other qualified witness authenticated the records. Therefore, the ALJ’s summary of medical opinions or diagnoses was not admissible under CRE 803(6).

Accordingly, the statements attributed to doctors in the ALJ’s decision were hearsay not subject to any exception and, therefore, were inadmissible.

II.

Defendant argues that the introduction of the ALJ’s decision was not harmless error and, therefore, he is entitled to a new trial. We agree.

Error cannot be predicated on the admission of evidence unless it affects a substantial right of a party. CRE 103(a). Such error is not harmless if a different .result might have been reached had the inadmissible evidence been excluded. CRE 103(a); Tran v. Hilburn, 948 P.2d 52 (Colo.App.1997).

The proper inquiry in deciding a harmless error question is whether the error substantially influenced the verdict or affected the fairness of the trial. A reviewing court cannot find error to be harmless unless it “can say with fair assurance that, in light of the entire record of the trial, the error did not substantially influence the verdict or impair the fairness of the trial.” People v. Gaffney, 769 P.2d 1081,1088 (Colo.1989).

Here, the challenged statements in the ALJ’s decision concern the nature and extent of plaintiffs injuries, which were central issues in this case. With the exception of the statements made by the doctor who testified at trial, the statements in the ALJ’s decision were not supported by other evidence at trial. Further, these statements are prejudicial to defendant, as they support plaintiffs argument that her alleged injuries in fact exist and that they occurred as a result of the accident.

The fact that plaintiff emphasized the ALJ’s decision and referenced the doctors’ statements in closing argument exacerbates the prejudicial impact of the admission of the decision. Plaintiff suggested to the jury that some of the doctors referred to in the decision were independent sources of information because they had been selected by the Social Security Administration to evaluate plaintiffs medical condition. This suggestion bolstered the testimony of the one doctor who testified for plaintiff, without allowing defendant an opportunity to cross-examine regarding the basis or accuracy of the hearsay opinions. Defendant vigorously cross-examined the doctor who testified, and we cannot say that the bolstering did not negate the effect of the cross-examination.

The causation and extent of plaintiffs injuries were the crux of this case, and therefore, the medical evidence was of critical importance. We conclude that the admission of this evidence cannot be considered harmless error.

Accordingly, defendant is entitled to a new trial.

III.

Because the issue may arise in a new trial, we address defendant’s contention that the trial court erred by admitting the depression inventory because it contained hearsay and was not subject to any exception. We agree.

Plaintiff sought admission of the depression inventory on the basis that the testifying doctor, who had not prepared the inventory, used it in his treatment of plaintiff. Defendant objected on grounds that the inventory was outside the doctor’s area of expertise and constituted hearsay. The trial court admitted the inventory into evidence, presumably under CRE 703, which provides, in part, that facts or data upon which an expert bases an opinion need not be admissible in evidence if of a type reasonably relied upon by experts in the particular field in forming opinions.

CRE 703, standing alone, does not provide a basis for admission of this evidence. That rule allows an expert to base his or her opinion on facts or data that are not admissible in evidence. Fenton v. Fibreboard Corp., 827 P.2d 564 (Colo.App.1991), affd in part and rev’d in part, 845 P.2d 1168 (Colo.1993). An expert may describe the statements or reports he or she relied on, People v. Bornman, 953 P.2d 952 (Colo.App.1997), but CRE 703 does not permit otherwise inadmissible facts or data contained in the reports or statements to be admitted merely because the expert relied on them. 29 C. Wright & V. Gold, Federal Practice & Procedure § 6273, at 315 (1997)(rule 703 not intended “as a vehicle for undermining other rules of evidence”).

Fed.R.Evid. 703, which is otherwise similar to CRE 703, was amended in December 2000 to make clear that the facts and data relied upon by the expert are not automatically admissible. The following sentence was added to the federal rule: “Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.” Although CRE 703 has not been similarly amended, this clarification to the federal rule is nonetheless instructive.

Plaintiff also argues that even if the depression inventory was hearsay, it falls within the exception in CRE 803(4). The inventory does not fall within this exception for the same reasons the evidence discussed in Part I did not.

Plaintiff alternatively argues that the inventory falls within the exception in CRE 803(6). While the inventory may have been a report that could fall within that exception, plaintiff did not lay the foundation necessary for admission of the evidence under that rule. The doctor who testified about the inventory did not prepare it, was not its custodian, and did not explain how or why the inventory was prepared.

Accordingly, we conclude that, under the circumstances here, it was error to admit the depression inventory under CRE 703. However, on retrial it may be admissible under another rule of evidence if a proper foundation is laid.

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

Judge DAVIDSON and judge CASEBOLT concur.


author: Judge ROY. Judge DAILEY

text:
    Leslyn CARLSON, Plaintiff-Appellee and Cross-Appellant, v. Kimberly Sue FERRIS and Man-Made Pizza, Inc., d/b/a Domino’s Pizza, Defendants-Appellants and Cross-Appellees.
    No. 00CA2347.
    Colorado Court of Appeals, Div. III.
    March 28, 2002.
    Rehearing Denied May 16, 2002.

    Certiorari Granted Dec. 2, 2002.

      Gradisar, Trechter, Ripperger, Roth & Croshal, James M. Croshal, Pueblo, Colorado, for Plaintiff-Appellee and Cross-Appellant.
    Clanahan, Tanner, Downing & Knowlton, P.C., Richard L. Shearer, Dino A. Ross, Denver, Colorado; Paul S. Edwards & Associates, Fotios M. Burtzos, Colorado Springs, Colorado, for Defendants-Appellants and Cross-Appellees.

      . Dailey, J., would grant.

   Opinion by

Judge ROY.

Defendants, Kimberly Sue Ferris (employee) and Man-Made Pizza, Inc. (employer), appeal from the judgment entered on a jury verdict in favor of plaintiff, Leslyn Carlson (driver), finding employer and employee liable for negligence and awarding damages for injuries sustained in a motor vehicle accident. Driver cross-appeals the judgment concerning comparative negligence. We reverse and remand for a new trial.

Driver and employee were involved in an automobile accident when employee failed to yield the right of way at a stop sign. In driver’s vehicle, the lap safety belt was separate from the shoulder belt so that one could be used without the other. Driver stipulated that she was wearing the shoulder belt but was not wearing the lap belt at the time of the accident. Employer stipulated that employee was acting within the course and scope of her employment at the time of the accident.

I.

Defendants contend that the trial court erred by refusing (1) to issue a seat belt defense jury instruction and (2) to allow them to refer to driver’s failure to wear a seat belt as a statutory violation during voir dire, opening statements, and witness examination. We agree with both contentions.

In Colorado, drivers of motor vehicles are required to use the installed safety belt systems, subject to certain exceptions not relevant here. Thus, § 42-4-237(2), C.R.S.2001, provides that “every driver of ... a motor vehicle equipped with a safety belt system shall wear a fastened safety belt while the motor vehicle is being operated on a street or highway in this state.”

Section 42-4-237(l)(b), C.R.S.2001, provides that “ ‘Safety belt system’ means a system utilizing a lap belt, a shoulder belt, or any other belt or combination of belts installed in a motor vehicle to restrain drivers and passengers, which system conforms to federal motor vehicle safety standards.”

Failure to comply with the statute subjects the driver to prosecution for a class B traffic infraction, § 42-4-237(4), C.R.S.2001, and evidence of that failure shall be admitted in any litigation to mitigate the driver’s damages for pain and suffering arising from an accident. Section 42-4-237(7), C.R.S.2001.

Driver contends that because the General Assembly omitted the word “system” in that portion of § 42-4-237(2) requiring use (“driver ... shall wear a fastened safety belt”), the statute is satisfied if a driver uses only one of the safety belts installed in the vehicle. In support of her position, driver argues that the use of the disjunctive “or” in § 42-4-237(l)(b) indicates that use of either a lap belt or a shoulder belt or any combination of belts is sufficient under § 4241-237(2). We disagree.

When interpreting a statute, we look first to its plain language. See Regional Transportation District v. Outdoor Systems, Inc., 34 P.3d 408 (Colo.2001). In order to effectuate legislative intent, we must give words their plain and ordinary meaning and look at the context in which statutory terms appear. The meaning of words may be ascertained by reference to the meaning of words associated with them. Colorado Interstate Gas Co. v. Property Tax Administrator, 28 P.3d 958 (Colo.App.2000).

Unless the legislative intent is clearly to the contrary, the use of the disjunctive “or” distinctly marks different categories. See Bloomer v. Board of County Commissioners, 799 P.2d 942 (Colo.1990), overruled in part on other grounds by Bertrand v. Board of County Commissioners, 872 P.2d 223 (Colo.1994); Jones v. Westemaires, Inc., 876 P.2d 50 (Colo.App.1993).

The General Assembly’s goal in enacting the Mandatory Seat Belt Act was to promote and increase safety belt use. See Anderson v. Watson, 953 P.2d 1284 (Colo.1998). We cannot interpret § 42-4-237(2) to reach a result clearly in conflict with legislative intent and disharmonious with § 42-4-237(7) by permitting drivers to avoid using an available safety belt. See DeLong v. Trujillo, 25 P.3d 1194 (Colo.2001)(in reading two provisions of a single act, the court attempts to give them sensible and harmonious effect and avoid interpretation that leads to absurd result). When interpreting the list in § 42-4-237(l)(b) in context with the words “installed in a motor vehicle to restrain drivers and passengers,” it is clear that the statute there describes different categories of safety belt systems that may be available in any given automobile, but does not describe various usage options that may satisfy the requirement that one wear a fastened safety belt.

Thus, a system installed in any particular motor vehicle may include either a lap belt or a shoulder belt, or some combination of the two, or any other belt. Where, as here, the system includes a separately fastened lap belt and shoulder belt, the driver is required to fasten both belts to comply with § 42-4-237(2) in order to defeat the safety belt defense to claims for pain and suffering under § 42-4-237(7).

We therefore hold that § 42-4-237(2) requires drivers to fasten all safety belts included in a vehicle’s safety belt system in order to defeat a claim of failure to mitigate under § 42-4-237(7).

Having so held, we also conclude that the trial court erred in limiting the scope of defendants’ voir dire, opening statement, and witness examination so as to preclude reference to driver’s obligation to mitigate her damages and in failing to instruct the jury on driver’s failure to mitigate her damages, all pursuant to § 42-4-237(7).

II.

Because it may arise on retrial, we address defendants’ contention that the trial court improperly precluded the testimony of their expert witnesses for failure to comply with the disclosure requirements of C.R.C.P. 26(a)(2)(B)(I). We find no error.

The trial court precluded the testimony of a physician on the basis that he failed to comply with the disclosure requirements of C.R.C.P. 26(a)(2)(B)(I). The trial court also precluded the testimony of a neurologist and vocational expert who were untimely endorsed, in part for their failure adequately to disclose information required in the defense expert’s reports pursuant to the same rule.

Discovery obligations and the expert disclosure requirements of C.R.C.P. 26(a) are enforced by the sanction mechanisms of C.R.C.P. 37. See Todd v. Bear Valley Village Apartments, 980 P.2d 973 (Colo.1999); Leidholt v. District Court, 619 P.2d 768 (Colo.l980)(C.R.C.P. 26 and 37 must be construed together). C.R.C.P. 37(c) provides for the preclusion of nondisclosed evidence unless the nondisclosing party establishes that its failure to disclose was either substantially justified or harmless. See Todd v. Bear Valley Village Apartments, supra.

C.R.C.P. 26(a)(2)(B)(I) requires that witnesses retained to provide expert testimony provide a disclosure report containing, among other things, “a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.” Failure to comply with this rule warrants precluding the expert’s testimony. See C.R.C.P. 37(c)(1).

In 1995, the supreme court implemented extensive revisions to the civil procedure rules to create a comprehensive case management system designed to increase the trial court’s managerial role in the discovery process and to reduce discovery abuses. See Todd v. Bear Valley Village Apartments, supra. As part of that revision, C.R.C.P. 26 is patterned largely after Rule 26 of the Federal Rules of Civil Procedure. See C.R.C.P. 26 committee cmt. (Colorado Differences). We therefore find ease law interpreting the federal rule instructive.

The identification of cases in which an expert has previously expressed opinions should include, at a minimum, the name of the court or administrative agency where the testimony occurred, the names of the parties, the case number, and whether the testimony was by deposition or at trial. See Coleman v. Dydula, 190 F.R.D. 316 (W.D.N.Y.1999); Nguyen v. IBP, Inc., 162 F.R.D. 675 (D.Kan. 1995).

It is undisputed that the doctor failed to meet these mínimums either in his initial disclosures or during the twenty-day extension to cure the defect. Defendants argue that the doctor’s noncompliance was substantially justified because he did not have, and therefore could not provide, the information, and because he had always provided the information in this manner in the past. However, the failure of the witness to comply with the rule in the past does not justify noncompliance in this case. See Coleman v. Dydula, supra; Palmer v. Rhodes Machinery, 187 F.R.D. 653 (N.D.Okla.1999).

The doctor had a list of the attorneys’ names, as well as sufficient other information so that, with some diligent effort, he could have substantially complied with the requirements of C.R.C.P. 26. Furthermore, the trial court afforded him an opportunity to do so by granting an additional twenty days to update the list. The doctor took no steps to do so.

Nor was the doctor’s failure to comply harmless. Failure to comply with the mandate of C.R.C.P. 26 is harmless when there is no prejudice to the party entitled to disclosure. See Reed v. Binder, 165 F.R.D. 424 (D.N.J.1996). The purposes of providing lists of prior cases are to enable opposing counsel to obtain prior testimony of the expert that may be relevant to the proposed testimony in the pending ease and to enable a party to prepare for cross-examination at a deposition or a trial. Failure to disclose the information is not harmless as contemplated by the rules. See Coleman v. Dydula, supra; Palmer v. Rhodes Machinery, supra; Nguyen v. IBP, Inc., supra.

Defendants’ argument that the information could have been obtained by taking a deposition is without merit. One purpose of C.R.C.P. 26 is to avoid having to take depositions in the interest of judicial economy and cost reduction. See 4 Sheila K. Hyatt & Stephen A. Hess, Colorado Civil Rules Annotated § 26.8 (3d ed.1998). The burden was on defendants’ experts to furnish the required information; it was not shifted to driver to discover it by deposition. See Coleman v. Dydula, supra (Rule 26 does not contemplate shifting burden of obtaining information to discovering party).

The trial court did not abuse its discretion in precluding the doctor’s testimony or in considering the inadequate disclosure when precluding the testimony of the neurologist and the vocational expert. Because the issue is not likely to recur on remand, we do not address defendants’ assertion that the trial court abused its discretion in precluding the testimony of neurologist and vocational expert because they were not endorsed in a timely manner.

III.

On cross-appeal, driver contends that the trial court erred in permitting defendants to argue that her failure to use both safety belts could be considered in determining whether she was comparatively negligent. We agree.

The failure to mitigate damages and comparative negligence are two separate and distinct concepts. The failure to use the complete safety belt system is not a proper consideration in determining the degree of driver’s comparative negligence, if any. See Churning v. Staples, 628 P.2d 180 (Colo.App.l981)(citing Fischer v. Moore, 183 Colo. 392, 517 P.2d 458 (1973)).

On retrial, the court should permit defendants to pursue their defense of failure to mitigate damages and appropriately instruct the jury with respect thereto. It should also instruct the jury that it may not consider driver’s failure to use the complete safety belt system in determining whether she was comparatively negligent in causing or failing to avoid the accident.

IV.

Driver also argues on cross-appeal that the trial court erred in failing to instruct the jury on sudden emergency. We agree.

The sudden emergency instruction is an evidentiary guideline under which the jury applies the prudent person rule in evaluating the evidence of negligence. The instruction may be properly given where competent evidence is presented that a party was confronted with a sudden or unexpected emergency not of that party’s own making. See Gordon v. Benson, 925 P.2d 775 (Colo.l996)(trial court must instruct jury on applicable law and a party’s theory of the case if supported by competent evidence); Young v. Clark, 814 P.2d 364 (Colo.1991). It is not appropriate when the party asserting it was obviously negligent. See Young v. Clark, supra.

Under the approved pattern instruction on sudden emergency, the jury’s application of the doctrine is explicitly conditioned on a finding that the actor, here driver, was not placed in a sudden emergency through any fault of his or her own. See CJI-Civ. 4th 9:10 (1998); see also Young v. Clark, supra.

In some cases it may not be clear whether a sudden emergency was caused by the negligence of the party claiming the sudden emergency. Here, there was a factual dispute as to whether driver was placed in a sudden emergency through any fault of her own, and that issue should have been submitted to the jury. See Young v. Clark, supra.

In this case, both driver and an accident reconstruction expert testified that driver was unable to avoid the accident because she suddenly encountered employee’s vehicle obstructing the intersection. During the trial, an investigating officer and driver testified about whether driver swerved or braked. Defense counsel argued in closing that driver had a duty to try to avoid the accident and that she breached that duty.

On that record, the jury was entitled to determine whether driver contributed to creating the emergency or merely reacted to it. Without a sudden emergency instruction the jurors improperly may have charged driver with negligence in reacting to the emergency because they were not instructed to consider whether driver’s conduct was prudent under the emergency circumstances. See CJI-Civ. 4th 9:10; Young v. Clark, supra; Davis v. Cline, 177 Colo. 204, 493 P.2d 362 (1972). Therefore, because the pattern instruction requires the jury to find that driver was not at fault before it applies the doctrine, it was error not to instruct the jury on sudden emergency.

The judgment is reversed, and the case is remanded for a new trial in accordance with the views expressed in this opinion.

Judge NEY concurs.

Judge DAILEY concurs in part and dissents in part.

Judge DAILEY

concurring in part and dissenting in part.

I concur in parts II through IV of the majority opinion. However, I respectfully dissent from the majority’s determination in part I that a person violates the state seat belt law by using only one of multiple safety belts in a car’s “safety belt system.”

The issue arises in the context of determining the admissibility in a civil case of evidence of a person’s failure to comply with § 42-2-237(2), C.R.S.2001, to mitigate damages resulting from a motor vehicle accident. See § 42-4-237(7), C.R.S.2001. Subject to certain exceptions not relevant here, § 42-4-237(2), provides that “every driver of and every front seat passenger in a motor vehicle equipped with a safety belt system shall wear a fastened safety belt while the motor vehicle is being operated on a street or highway in this state” (emphasis added).

The text of § 42-4-237(2) itself differentiates between “a safety belt system” and “a fastened safety belt” and requires only that a driver or front seat passenger wear “a fastened safety belt” while the vehicle is in motion.

“Courts should not presume that the legislature used language idly and with no intent that meaning should be given to its language.” People v. J.J.H., 17 P.3d 159, 162 (Colo.2001)(internal quotation marks omitted). Had the General Assembly intended the result envisioned by the majority, it could have easily worded the requirement in terms of using all belts in the “safety belt system” instead of using “a fastened safety belt.” See Mason v. People, 932 P.2d 1377, 1380 (Colo.l997)(interpreting speedy trial statute).

In my view, the majority’s conclusion is contrary to the clear and unambiguous language of § 42-4-237(2), and, consequently, I would affirm the judgment of the trial court on that issue.


author: Judge DAILEY.

text:
    COLORADO SPRINGS DISPOSAL, d/b/a Bestway Disposal; and Colorado Compensation Insurance Authority, d/b/a Pinnacol Assurance, Petitioners, v. INDUSTRIAL CLAIM APPEALS OFFICE OF THE STATE OF COLORADO and Matthew J. Martinez, Respondents.
    No. 01CA0464.
    Colorado Court of Appeals, Div. III.
    March 28, 2002.
    Rehearing Denied May 23, 2002.
    Certiorari Denied Nov. 25, 2002.

    Curt Kriksciun, Denver, Colorado, for Petitioners.
    Ken Salazar, Attorney General, Laurie K. Rottersman, Assistant Attorney General, Denver, Colorado, for Respondent Industrial Claim Appeals Office.
    Winston Law Firm, Joseph R. Winston, Haydn Winston, Colorado Springs, Colorado, for Respondent Matthew J. Martinez.
    Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder, Colorado; Pepe J. Mendez & Associates, P.C., Pepe J. Mendez, Denver, Colorado, for Amicus Curiae Workers Compensation Education Association.

      . Chief Justice MULLARKEY would grant as to the following issues:
      Whether the term "employment” as used in sections 8-42-103(l)(g) and 8-42-105(4), 3 C.R.S. (2001), is ambiguous.
      Whether the term "employment” as used in sections 8-42-103(l)(g) and 8-42-105(4), refers to regular employment to modified employment, or to both.

   Opinion by

Judge DAILEY.

The sole issue in this workers’ compensation case is whether Matthew J. Martinez (claimant) is barred from receiving temporary total disability (TTD) benefits because he was responsible for his subsequent termination from employment. We conclude that claimant is entitled to such benefits, and therefore we affirm the final order of the Industrial Claim Appeals Office (Panel) imposing liability on the employer, Colorado Springs Disposal, and its insurer, Colorado Compensation Insurance Authority (collectively CCIA).

In September 1999, claimant suffered disabling injuries in a one-vehicle accident when the trash truck he was driving ran off a curve in the road and foiled. Claimant was cited for careless driving.

The restrictions imposed by the treating physicians rendered claimant unable to perform his usual duties, and he was released to modified duties several weeks later. However, when he returned to work, claimant was immediately terminated because employer determined that he violated a company policy, which provided that an employee involved in a driving accident may be terminated. Modified employment was never offered.

Claimant then requested TTD benefits from the date of the injury until the date he obtained alternative employment. CCIA admitted liability for medical benefits, but denied TTD benefits. CCIA argued that claimant is precluded from receiving TTD benefits because two statutes provide that, effective July 1, 1999, “where it is determined that a temporarily disabled employee is responsible for termination of employment, the resulting wage loss shall not be attributable to the on-the-job injury.” Sections 8-42-103(l)(g), 8-42-105(4), C.R.S.2001 (the termination statutes).

The Administrative Law Judge (ALJ) determined that claimant was not “responsible” for his termination as that term is used in the termination statutes. Finding that the statutes were therefore inapplicable, the ALJ ordered CCIA to pay the requested TTD benefits. The Panel affirmed the award, also concluding that the termination statutes were inapplicable, but for different reasons. Finding an ambiguity in the term “employment,” the Panel resorted to legislative history and concluded that the termination statutes apply only to the termination of modified employment.

I.

CCIA contends that the term “employment” as used in the termination statutes is not ambiguous and therefore the Panel’s resort to legislative history is unwarranted. We agree.

Guidance for our statutory interpretation comes, interestingly enough, from the very case the termination statutes legislatively overruled. See PDM Molding, Inc. v. Starnberg, 898 P.2d 542, 547 (Colo,1995)(even where an employee is at fault for the termination from employment, temporary disability benefits may be awarded if the industrial injury contributed to some degree to the subsequent wage loss), overruled by §§ 8-42-103(l)(g), 8^42-105(4). In that case, the court held: ,

In construing statutes courts must give effect to the intent giving rise to the legislation. To carry out that responsibility courts first look to the statutory language itself, giving words and phrases their commonly accepted and understood meaning. If the statutory language is unambiguous, there is no need to resort to interpretive rules of statutory construction. That is, if courts can give effect to the ordinary meaning of the words adopted by a legislative body, the statute should be construed as written since it may be presumed that the General Assembly meant what it clearly said.

PDM Molding, Inc. v. Stanberg, supra, 898 P.2d at 545 (citations omitted).

Here, the Panel found that the term “employment” was ambiguous because “the term could refer to any job the claimant possessed, including the one held at the time of the industrial injury itself .... [but] could also refer to modified employment.” Admittedly, the term “employment” can be broadly interpreted. However, that is exactly how the General Assembly defined the term for purposes of the Workers’ Compensation Act (Act). See § 8-40-201(8), C.R.S.2001 (“employment” means any trade, occupation, job, position, or process of manufacturing, or any method of carrying these on). And, the use of broad language alone does not create an ambiguity, see Humane Soc’y v. Indus. Claim Appeals Office, 26 P.3d 546, 548 (Colo.App.2001), especially when the General Assembly is perfectly capable of drawing a distinction between modified employment, and regular employment. See §§ 8-42-105(3)(b) & (d), S — 42—106(2)(b), C.R.S.2001 (providing that the length of temporary disability benefits depends on the availability of and return to regular or modified employment).

Although the definition of “employment” may be subject to interpretation if “the context otherwise requires,” see § 8-40-201, C.R.S.2001, nothing in the context here mandates the restrictive view that “employment” means only “modified employment.” Indeed, when the termination statutes were enacted, the existing termination cases involved many different factual scenarios, only some of which support the Panel’s interpretation that “employment” means only “modified employment.” Compare Black Roofing Inc. v. West, 967 P.2d 195, 196 (Colo.App.l998)(claimant injured while engaged in regular employment, but terminated for drinking and unexcused absences after returning to modified employment), and Monfort v. Husson, 725 P.2d 67, 68 (Colo.App.l986)(because no modified employment was available after injury, claimant was terminated, then began work for subsequent employer, and was terminated for cause), overruled on other grounds by Allee v. Contractors, Inc., 783 P.2d 273 (Colo.1989), with PDM Molding, Inc. v. Stanberg, supra, 898 P.2d at 547 (acts giving rise to termination occurred before industrial injury, and termination occurred on same date as, but after, injury), and with Bestway Concrete v. Indus. Claim Appeals Office, 984 P.2d 680, 682-83 (Colo.App.l999)(claimant released to regular employment prematurely, and because his injury prohibited proper operation of vehicle, he was terminated for unsafe driving).

The facts in these cases illustrate the wide range of circumstances the General Assembly sought to address when it enacted the termination statutes, and we may presume that it was fully aware of these different factual circumstances. See People v. Green, 734 P.2d 616, 621 (Colo.l987)(it must be presumed that the legislature acted with" an awareness of prior decisional law on the subject- matter under inquiry); People v. Burgess, 946 P.2d 565, 568 (Colo.App. 1997)(same).

Neither PDM nor Bestway involved modified employment, and if the General Assembly had intended to exclude nonmodified employment factual circumstances from the reach of the termination statutes, it certainly could have tailored the statutes accordingly.

The facts in this case, while novel in that a single act caused both the injury and the termination, cannot be said to fall outside the termination statutes simply because there was no modified employment. And, because it is possible to give effect to the termination statutes by using the ordinary, all-inclusive meaning attributed to the term “employment” in the Act, we will do so. See PDM Molding, Inc. v. Stanberg, supra, 898 P.2d at 545.

Accordingly, we conclude that the term “employment” as used in the termination statutes is not ambiguous and encompasses both modified and regular employment. As a result, we have no need to resort to legislative history. See PDM Molding, Inc. v. Stanberg, supra.

II.

Our conclusion about the meaning of the term “employment” does not, however, dispose of this appeal. Although the Panel erred in its interpretation of the term, we nonetheless agree with the result it reached, based on the ALJ’s conclusion that claimant was not “responsible” for the termination. Therefore, we perceive no reversible error in the award of TTD benefits here.

The Act provides workers compensation for job-related injuries, regardless of fault. Frohlick Crane Serv., Inc. v. Mack, 182 Colo. 34, 38, 510 P.2d 891, 893 (1973); Digliani v. City of Fort Collins, 873 P.2d 4, 7 (Colo.App.1993).

The Act provides compensation to an injured employee, “even though the employee may be negligent and even if the employer is not negligent.” Frohlick Crane Serv., Inc. v. Mack, supra, 182 Colo, at 38, 510 P.2d at 893; see § 8-41-101(l)(c), C.R.S.2001 (abrogating the defense of contributory negligence in workers’ compensation cases).

In return, employers receive immunity from the common law claims of their employees. See Frohlick Crane Serv., Inc. v. Mack, supra, 182 Colo, at 38, 510 P.2d at 893 (“The employer is immunized from claims for tor-tious injuries only because he assumes the burden of compensating a [worker] for all job-related injuries.”); see also 6 Larson’s Workers’ Compensation Law § 100.01[01], at 100-2 & 100-3 (2001)(while, under workers’ compensation laws, “the employer assumes a new liability without fault, it is relieved of the prospect of large damage verdicts”).

The term “responsible” as used in the termination statutes appears to introduce into the Act the limited concept of “fault” used in termination cases before the supreme court’s decision in PDM.

In those cases, the “fault” inquiry focused on the reason or reasons for termination apart from the reason for, or cause of, the injury for which compensation was sought. See PDM Molding, Inc. v. Stanberg, 885 P.2d 280, 281-82 (Colo.App.1994), ajfd, PDM Molding, Inc. v. Stanberg, supra, 898 P.2d at 543 (acts giving rise to termination occurred before industrial injury); Padilla v. Digital Equip. Corp., 902 P.2d 414, 415 (Colo.App.l994)(claimant’s termination was due to his falsification of a time card, an act unrelated to a compensable injury), on remand, 908 P.2d 1185, 1186 (Colo.App.1995); Monfort v. Husson, supra (employer asserted claimant was terminated not because of his injury but because he thereafter violated company policy by not calling in). Indeed, in Monfort v. Husson, supra, 725 P.2d at 69, a division of this court recognized that other jurisdictions award compensation benefits where an employee’s termination is caused by his or her injury.

In construing the term “responsible,” we may not ignore the overall scheme of the Act, see PDM Molding, Inc. v. Stanberg, supra, 898 P.2d at 545, which includes a provision requiring a fifty percent reduction in benefits if the employee is injured due to a willful violation of a safety rule. Section 8-42-112(1), C.R.S.2001. In light of this provision, we find it highly unlikely that the General Assembly intended to deny completely temporary disability benefits where an employee was terminated for negligently (or, for that matter, even willfully) causing a work injury.

This consideration, together with the abrogation of the contributory negligence defense in workers’ compensation cases, lead us to conclude that, as used in the termination statutes, the word “responsible” does not refer to an employee’s injury or injury-producing activity. Hence, the termination statutes are inapplicable where an employer terminates an employee because of the employee’s injury or injury-producing conduct.

To otherwise interpret the term “responsible” and the statutes would, in our view, defeat the Act’s major purpose of compensating work-related injuries regardless of fault and would dramatically alter the “mutual renunciation of common law rights and defenses by employers and employees alike.” See § 8-40-102(1), C.R.S.2001. Because such an interpretation might call into question the constitutionality of the Act, see Smith v. Gould, Inc., 918 F.2d 1361, 1364 (8th Cir.l990)(workers’ compensation acts should not be arbitrary and unreasonable, nor should they fail to provide a reasonably just substitute for the common law rights of action taken away), we eschew it here. See Buckley v. Chilcutt, 968 P.2d 112, 116 (Colo.1998)(“if two interpretations are possible, we must avoid an interpretation that might render a statute unconstitutional”); BCW Enters., Ltd. v. Indus. Claim Appeals Office, 964 P.2d 533, 537 (Colo.App.l997)(“when possible, statutes should be construed so as to avoid questions of their constitutional validity”).

In this case, the termination statutes are inapplicable because claimant, by driving carelessly, was not “responsible” within the meaning of those statutes for Ms termination. Accordingly, claimant is entitled to the TTD benefits awarded.

The order is affirmed.

Judge NEY and Judge ROY concur.