text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Scott Richard CAMPBELL, Defendant-Appellant.
    No. 01CA1703.
    Colorado Court of Appeals, Div. V.
    Feb. 26, 2004.
    Rehearing Denied April 1, 2004.
    Certiorari Denied Aug. 2, 2004.

      Ken Salazar, Attorney General, Monica M. Marquez, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Thomas K. Carberry, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge DAILEY.

Defendant, Scott Richard Campbell, appeals the judgment of conviction entered upon jury verdicts finding him guilty of sexual exploitation of a child and contributing to the delinquency of a minor. We affirm.

In executing a search warrant to uncover possible evidence of drug activity at defendant’s house, police came across a photograph that depicted two young females engaged in sexually explicit conduct. The police seized the photograph and subsequently determined that one person depicted 'in the photograph was a fifteen-year-old girl, and the other was defendant’s eighteen-year-old wife. At trial, the girl testified that she had had a consensual sexual relationship with defendant’s wife and that defendant had posed them for and then taken the sexually explicit photograph seized by the police.

I.

Defendant contends that the trial court erred in not suppressing the photograph as illegally seized. We disagree.

Under the plain view exception to the warrant requirement, “police are not required to close their eyes to any evidence that they plainly see while conducting otherwise legitimate searches.” People v. Pitts, 13 P.3d 1218, 1222 (Colo.2000). Police may seize, without a warrant, plainly visible evidence, so long as (1) their initial intrusion onto the premises was legitimate; (2) they had a lawful right of access to the object; and (3) they had a reasonable belief that the evidence seized was incriminating. People v. Pitts, supra.

Defendant does not challenge the right of the police either to be on the premises or to access photographs to uncover evidence of possible drug activity. Instead, defendant challenges only whether the police had a reasonable belief that the photograph was incriminating in nature. We reject this challenge.

A reasonable belief that evidence is incriminating exists when the incriminating nature of the evidence is immediately apparent to the searching officer. People v. Kluhsman, 980 P.2d 529, 535 n. 8 (Colo.1999). The “immediately apparent” requirement is satisfied if, without further search, police have probable cause to associate an item with criminal activity. People v. Dumas, 955 P.2d 60, 64 n. 9 (Colo.1998); see People v. Pitts, supra, 13 P.3d at 1222.

Probable cause is not measured by a “ ‘more likely true than false’ level of certitude but by a common-sense, nontechnical standard of reasonable cause to believe.” People v. King, 16 P.3d 807, 813 (Colo.2001)(quoting People v. Ratcliff, 778 P.2d 1371, 1375 (Colo.1989)).

We review de novo whether probable cause immediately existed to believe that the photograph was incriminating. See People v. Matheny, 46 P.3d 453, 461 (Colo.2002)(noting standard for reviewing probable cause assessment for warrantless police action).

A person commits the crime of sexual exploitation of a child by, among other things, taking a photograph depicting explicit sexual conduct by a child under eighteen years of age. Section 18-6-403(2)(a), (2)(j), (3)(a), (3)(b.5), C.R.S.2003. Here, the police seized the photograph as evidence of this crime because one of the females depicted had a very youthful face, underdeveloped breasts, and a lack of pubic hair.

We have reviewed the photograph and conclude that the characteristics relied upon by the police provided reasonable cause to believe that the girl was underage. In this regard, we agree with the trial court’s observation that “it is readily and immediately apparent that this girl could be under the age of 18.” That she might in fact have been over eighteen — and that it might take some time to ascertain her actual age — does not detract from the reasonable belief the police had, immediately upon viewing the picture, that she was not eighteen when the picture was taken.

Accordingly, we conclude that the police properly seized the photograph under the plain view exception to the warrant requirement, and thus, the trial court properly denied defendant’s motion to suppress the photograph.

Defendant next contends that, as applied to the facts of this case, the sexual exploitation of children statute violates his constitutional rights to equal protection of the laws. We disagree.

Defendant premises his argument upon the different ways the law treats the consent of a fifteen-year-old to have sex or be photographed having sex. Under the sexual assault statute, a fifteen-year-old can effectively consent to have sex with a person not more than ten years older than he or she is. Section 18 — 3—402(l)(e), C.R.S.2003. In contrast, under the sexual exploitation of children statute, a person “below the age of eighteen years is incapable of giving informed consent to the use of his or her body for a sexual purpose.” Section 18 — 6—403(1), C.R.S.2003. Applying these provisions to the facts of this case, defendant’s wife could not be prosecuted for having sex with the girl, but he could be prosecuted for photographing his wife having sex with the girl. This disparity, he asserts, violates his right to equal protection of the laws. We are not persuaded.

Equal protection of the laws guarantees that similarly situated persons will receive like treatment. If, as here, a statute neither infringes upon a fundamental right (see section III, infra) nor involves a suspect or quasi-suspect classification, it will be upheld against an equal protection challenge if the classification it effects is reasonable and bears a rational relationship to legitimate state objectives. See People v. Wiedemer, 852 P.2d 424, 439 (Colo.1993).

It is the General Assembly’s prerogative to define criminal conduct and to establish the legal components of criminal liability. See People v. Salazar, 920 P.2d 893, 895 (Colo.App.1996). The General Assembly may, consistent with equal protection guarantees, choose to impose a penalty for an act that it perceives to have graver social consequences than another act. See Campbell v. People, 73 P.3d 11, 15 (Colo.2003)(analyzing issue of different penalties for different acts).

Because statutes are presumed to be constitutional, defendant bears the burden of demonstrating that the statute relies on an arbitrary distinction not based upon real differences. He must show that no rational basis exists to treat his prohibited • act of sexual exploitation of a child differently from his wife’s legally permissible act of engaging in sexual activity with that same child. See People v. Goodale, 78 P.3d 1103, 1107 (Colo.2003)(analyzing claim of harsher penalties for less serious crime). Defendant fails to meet his burden.

Certainly, there is a compelling state interest in regulating the making and possession of pornography involving the use of children. See People v. Enea, 665 P.2d 1026, 1028 (Colo.1983)(“The manufacture, sale, and distribution of photographs and films depicting children involved in sexual activity is intrinsically related to the physical, psychological, and sexual abuse of children.”); see also Osborne v. Ohio, 495 U.S. 103, 109-10, 110 S.Ct. 1691, 1696, 109 L.Ed.2d 98 (1990)(state has a compelling interest in regulating possession of child pornography); New York v. Ferber, 458 U.S. 747, 758, 102 S.Ct. 3348, 3355, 73 L.Ed.2d 1113 (1982)(state has a compelling interest in regulating “the use of children as subjects of pornographic materials”).

Here, the General Assembly could rationally conclude that, for fifteen- to eighteen-year-olds, engaging in consensual sex with others who are within a reasonably close age range, and who are not in a position of trust, is less harmful than being photographed for sexually explicit material. Sexual activity between teenagers is not uncommon, see Ashcroft v. Free Speech Coalition, 535 U.S. 234, 246, 122 S.Ct. 1389, 1400, 152 L.Ed.2d 403 (2002)(“teenagers engaging in sexual activity ... is a fact of modern society”), but reducing those activities to a recording “may haunt [the child] in future years, long after the original [sex act] took place.” See New York v. Ferber, supra, 458 U.S. at 759 n. 10, 102 S.Ct. at 3356 (quoting Shouvlin, Preventing the Sexual Exploitation of Children: A Model Act, 17 Wake Forest L.Rev. 535, 545 (1981)); see also § 18-6-403(1.5), C.R.S.2003 (recognizing the “continuing victimization” of children stemming from a permanent record of the acts); Ashcroft v. Free Speech Coalition, supra, 535 U.S. at 249, 122 S.Ct. at 1401 (“Like a defamatory statement, each new publication of [child pornography] would cause new injury to the child’s reputation and emotional well-being.”).

Because the legislature could rationally conclude that there was a harm connected with making sexually exploitative materials, independent of any harm occasioned by the sex act being photographed, we reject defendant’s equal protection challenge to the sexual exploitation statute as applied to him. Cf. People v. Slusher, 844 P.2d 1222, 1229-30 (Colo.App.1992)(rejeeting equal protection challenge to punishing sexual exploitation more severely than sexual assault).

III.

We also reject defendant’s contention that the sexual exploitation of children statute is unconstitutionally overbroad on its face.

A statute is impermissibly over-broad if it prohibits constitutionally protected conduct. People v. Enea, supra, 665 P.2d at 1027. A statute is not, however, “unconstitutional due to facial overbreadth unless the overbreadth is ‘not only real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.’ ” People v. Batchelor, 800 P.2d 599, 601 (Colo.1990)(quoting Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917, 37 L.Ed.2d 830 (1973)).

In People v. Batchelor, supra, the supreme court rejected a facial overbreadth challenge to the validity of the sexual exploitation of children statute. However, defendant now contends that the statute is invalid under Ashcroft v. Free Speech Coalition, supra, because it encompasses within its reach serious literary and artistic material such as movies and television programs. We disagree.

In Free Speech Coalition, the Supreme Court recognized that, in some circumstances, child pornography might be of significant and constitutionally protected value; however, the Court made it clear that “pornography produced with real children” did not fall within this category. Ashcroft v. Free Speech Coalition, supra, 535 U.S. at 246, 122 S.Ct. at 1399. The Court held unconstitutional a federal statute prohibiting “any visual depiction” that “is, or appears to be, of a minor engaging in sexually explicit conduct,” because it banned permissible, alternative modes to the use of real children to create child pornography for use in serious literary or artistic materials. Those permissible, alternative modes included purely computer-generated images of children or use of actors who, though older than the statutory age, appear younger than they actually are. See Ashcroft v. Free Speech Coalition, supra, 535 U.S. at 256, 122 S.Ct. at 1405.

Unlike the statute in Free Speech Coalition, Colorado’s sexual exploitation of children statute does not prohibit the making or possession of photographs that “appear[] to be” of a minor engaged in sexually explicit conduct. Instead, it prohibits “caus[ing], inducting], entic[ing], or permitting] a child to engage in, or be used for, any explicit sexual conduct for the making of any sexually exploitative material.” Section 18-6^403(3)(a). And Colorado specifically defines “child” as a “person who is less than eighteen years of age.” Section 18-6-403(2)(a).

Therefore, because this statute prohibits only the use of real children in the production of pornography, it is not unconstitutionally overbroad on its face. See, e.g., State v. Hazlett, 205 Ariz. 523, 73 P.3d 1258, 1261 (Ct.App.2003)(upholding similarly worded statute against Free Speech Coalition over-breadth challenge); Fink v. State, 817 A.2d 781, 790-91 (Del.2003)(same); State v. Fingal, 666 N.W.2d 420, 424 (Minn.Ct.App. 2003)(sanie); Griffin v. State, 317 Mont. 457, 77 P.3d 545, 548 (2003)(same); State v. Anderson, 151 Ohio App.3d 422, 784 N.E.2d 196, 200 (2003)(same); Webb v. State, 109 S.W.3d 580, 582-83 (Tex.Crim.App. 2003)(same).

IV.

Finally, we reject defendant’s contention that the trial judge should have re-cused herself because of rulings she made in defendant’s prior related drug case. See People v. Lanari, 926 P.2d 116, 119 (Colo. App.1996)(“a judge’s rulings on issues presented in prior proceedings, even if erroneous, are insufficient by themselves to demonstrate disqualifying bias or prejudice”); see also Walker v. People, 126 Colo. 135, 147, 248 P.2d 287, 294 (1952); People v. Boehmer, 767 P.2d 787, 790 (Colo.App.1988).

The judgment is affirmed.

Chief Judge DAVIDSON and Judge VOGT concur.


source: Caselaw Access Project

author: Judge LOEB.

license: Public Domain

text:
    In re the MARRIAGE of James H. CHALAT, Appellant, and Nancy S. Chalat, n/k/a Nancy S. Shapiro, Appellee.
    Nos. 02CA0734, 02CA2001.
    Colorado Court of Appeals, Div. IV.
    March 11, 2004.
    Certiorari Granted July 26, 2004.

      Canges, Iwashko, Bethke & Bailey, P.C., James S. Bailey, Denver, Colorado, for Appellant.
    Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder, Colorado; James J. Keil, Jr., Wheat Ridge, Colorado; Michael P. Zwiebel, Boulder, Colorado, for Appellee.
   Opinion by

Judge LOEB.

James H. Chalat (father) appeals from two postdecree orders for the payment of child support and postsecondary education expenses for the daughter born of his marriage to Nancy S. Shapiro (mother). We affirm in part, reverse in part, and remand for further proceedings.

The parties’ brief marriage was dissolved in 1984, and the decree incorporated a separation agreement, which provided, as pertinent here:

5. Child support
a) Cash payment. [Father] shall pay to [mother], as and for child support, the sum of $500.00 per month ... until the child is twenty-one (21) years of age or emancipated, whichever first occurs.
c) College Tuition and Expenses. [Father] shall be responsible for payment of the child’s tuition, room, board, books and fees for four years at an undergraduate college through child’s twenty-second (22nd) birthday, should the child decide to pursue a college degree.
The parties agree that at the time the child commences college they will reassess [father’s] child support obligation, taking into consideration [father’s] obligation for the child’s college expenses.

Mother moved to modify child support in 1993 based upon adoption of the child support guidelines and changed circumstances. The parties reached a written stipulation in 1994, which was approved and made an order of the court. They agreed that father would pay $500 as the base amount of support. They also agreed that they would meet no later than April 30 each year, beginning in 1995, to review their incomes and to calculate support for the prior year; that father would pay, if due, a lump sum of additional retroactive child support by May 15; and that they would mediate prior to seeking court enforcement of the stipulation. They further agreed that all other provisions of the existing orders would remain in full force and effect. Finally, the parties agreed that the Colorado Child Support Guidelines and Colorado law set out the standard for determining child support obligations of each party, and they agreed to those guidelines.

Mother sought another modification in 2001 based upon a substantial and continuing change of circumstances. She also requested enforcement of the 1994 stipulation, seeking payment of child support arrearages due under the agreement since 1995. Father sought a declaratory judgment as to the extent of his obligation for postsecondary education expenses.

After a hearing, the magistrate concluded that father was obligated to pay child support arrearages of $26,836 within twenty-four months; the provision of the 1984 separation agreement for postsecondary education expenses was contractual in nature, nonmodifiable, and reaffirmed in 1994; it was not unreasonable for the child to attend the University of Vermont; father was responsible for the tuition, room, board, books, and fees at an undergraduate college until the child reached the age of twenty-two, when she would become emancipated; and father was required to pay $14,000 of the $21,621.88 attorney fees incurred by mother. The magistrate later corrected some clerical errors, and on review, the district court affirmed.

In a subsequent order, the magistrate rejected father’s argument that its prior order was nonmodifiable and ordered father to pay the postsecondary education expenses incurred by his daughter at the University of Pennsylvania, to where she had transferred. The district court affirmed.

I.

Father first contends that the magistrate and district court erred in not limiting his college expense obligation under the statutory child support guidelines. He argues that the court’s determination that his obligation was nonmodifiable and contractual was erroneous as a matter of law. We agree.

The pertinent provisions of § 14-10-115(1.5), C.R.S.2003, provide that:

(a) For child support orders entered prior to July 1, 1997, unless a court finds that a child is otherwise emancipated, emancipation occurs and child support terminates when the child attains nineteen years of age unless one or more of the following conditions exist:
(I) The parties agree otherwise in a written stipulation after July 1, 1991.
(b)(1) If the court finds that it is appropriate for the parents to contribute to the costs of a program of postsecondary education, then the court shall terminate child support and enter an order requiring both parents to contribute a sum determined to be reasonable for the education expenses of the child, taking into account the resources of each parent and the child. In determining the amount of each parent’s contribution to the costs of a program of postseeondary education for a child, the court shall be limited to an amount not to exceed the amount listed under the schedule of basic child support obligations in paragraph (b) of subsection (10) of this section for the number of children receiving postsecondary education.... In no case shall the court issue orders providing for both child support and postsecondary education to be paid for the same time period for the same child regardless of the age of the child. Either parent or the child may move for such an order at any time before the child attains the age of twenty-one years.... The order for post-seeondary education support may not extend beyond the earlier of the child’s twenty-first birthday or the completion of an undergraduate degree.... If the child resides in the home of one parent while attending school or during periods of time in excess of thirty days when school is not is session, the court may order payments from one parent to the other for room and board until the child attains the age of nineteen....
(c) This subsection (1.5) shall apply to all child support obligations established or modified as a part of any proceeding, including but not limited to articles 5, 6, and 10 of this title and articles 4 and 6 of title 19, C.R.S., prior to July 1, 1997. This subsection (1.5) shall not apply to child support orders established on or after July 1,1997, which shall be governed by subsection (1.6) of this section.
(c.5) An order for postsecondary education expenses entered between July 1, 1991, and July 1, 1997, may be modified pursuant to this subsection (1.5) to provide for postsecondary education expenses subject to the statutory provisions for determining the amount of a parent’s contribution to the costs of postsecondary education, the limitations on the amount of a parent’s contribution, and the changes to the definition of postsecondary education consistent with this section as it existed on July 1, 1994. An order for child support entered prior to July 1,1997, that does not provide for postsecondary education expenses shall not be modified pursuant to this subsection (1.5).
(d) Postsecondary education support may be established or modified in the same manner as child support under this article.
(e) For the purposes of this section, “post-secondary education support” means support for the following expenses associated with attending a college, university, or vocational education program: Tuition, books, and fees.

A division of this court recently addressed some of the provisions concerning the obligation for postsecondary education expenses in In re Marriage of Crowder, 77 P.3d 858 (Colo.App.2003). In Crowder, the parties reached a separation agreement prior to July 1, 1991, in which they agreed to share the costs of four years of undergraduate college education in proportions to be mutually agreed upon by the parties. In 2000, the parties stipulated to adopt the age of emancipation at nineteen and agreed to reduce the amount of support. They did not modify their prior agreement to contribute to college expenses for a four-year education.

Based on the plain language of § 14-10-115(1.5)(c), the division in Crowder concluded that the statute was applicable to the pre-July 1, 1991, separation agreement because the statute created no exemption for separation agreements entered into under and consistent with earlier legislation. The division also concluded that the order for postsecond-ary education expenses was subject to the limitations set forth in § 14-10-115(1.5)(b)(I). Thus, the case was remanded to the trial court to modify the father’s obligation for college costs to reflect that it terminated upon the earlier of the son’s twenty-first birthday or his completion of a four-year undergraduate program. The division also concluded that the father’s obligation was limited to the presumed monthly child support guideline amount. It did not agree that the father’s obligation was defined by § 14-10 — 115(1.5)(e) to be only tuition, books, and fees because the father failed to request that the trial court so limit his obligation.

Seeking to uphold the magistrate’s order, mother argues that the decision in Crowder is not dispositive here because the division there erroneously relied solely on § 14-10-115(1.5)(c), without considering the provisions of § 14-10-115(1.5)(c.5) and (d). She argues that the more specific § 14-10-115(1.5)(c.5) controls over § 14-10-115(1.5)(c), and she maintains that the legislative history shows that the General Assembly intended to make orders entered prior to July 1, 1991, nonmodifiable. We disagree and conclude that § 14-10-115(1.5)(c) and (c.5) can and should be harmonized.

A.

Initially, we reject the magistrate’s conclusion that the terms of the parties’ pre-July 1, 1991, separation agreement were binding on the court because they were contractual and nonmodifiable. See § 14-10-112(2), (6), C.R.S.2003 (terms of separation agreement except those for allocation of parental responsibilities, support, and parenting time are binding on the court, and modification of such terms may be precluded or limited); In re Marriage of Robb, 934 P.2d 927 (Colo.App.1997)(revised statutory age of emancipation applied to pre-1991 separation agreement).

We also disagree with mother that § 14-10-115(1.5)(d), which allows postsecondary education expenses to be established or modified “in the same manner” as child support, refers only to the statutory procedure, and not the substance, of such legislation. In our view, it is significant that subsection (1.5)(d) was adopted the year immediately following the 1991 statutory amendments.

B.

Construction of a statute is a matter of law. In re Marriage of Van Inwegen, 757 P.2d 1118 (Colo.App.1988). If possible, a statute should be interpreted to give consistent, harmonious effect to all its parts. In re Marriage of Davisson, 797 P.2d 809 (Colo. App.1990). When statutes on the same subject are potentially conflicting, the court must reconcile them, if possible, to avoid an inconsistent or absurd result. In re Marriage of Dureno, 854 P.2d 1352 (Colo.App. 1992).

In 1991, the General Assembly enacted the first major statutory changes concerning emancipation and postsecondary education expenses. See Stephen J. Harhai, Child Support Changes In 1991 Emancipation at 19 and Voluntary Unemployment, 40 Trial Talk 205 (Aug.1991). Under the 1991 legislation, unless otherwise agreed in a written stipulation after July 1,1991, emancipation occurred and child support terminated at the age of nineteen years. Postsecondary education expenses could be ordered, but not beyond the child’s twenty-first birthday or for higher education beyond the undergraduate degree. Colo. Sess. Laws 1991, ch. 38, § 14-10-115(1.5) at 234-36.

Section 14 — 10—115(1.5)(c) was originally added in 1991 and was not modified again until 1997. During that period', it provided that subsection (1.5) shall apply to all child support obligations established or modified in any of the enumerated proceedings “whether filed on, prior to, or subsequent to July 1, 1991.” It also provided that “subsection (1.5) does not apply to modifications of child support obligations with respect to a child whose nineteenth birthday falls before July 1, 1991.”

A series of complex statutory changes to the postseeondary education expense provisions was made between 1991 and 1997. See Helen C. Shreves & Richard A. Harris, Post-secondary Education Costs: Forging Through a Legislative Labyrinth, 24 Colo. Law. 43 (Jan.1995)(Shreves I); see also Helen C. Shreves, Post-secondary Education Expenses: A Multi-tiered Approach, 27 Colo. Law. 61 (Jan.1998)(Shreves II).

In 1997, § 14 — 10—115(1.5)(c) was amended to provide that subsection (1.5) shall apply to all child support obligations established or modified as part of any proceeding prior to July 1, 1997. Additionally, language was added to § 14 — 10—115(1.5)(c) that “subsection (1.5) shall not apply to child support orders established on or after July 1, 1997, which shall be governed by subsection (1.6) of this section.” Colo. Sess. Laws 1997, ch. 147 at 567. Under § 14-10-115(1.6), C.R.S.2003, the court is precluded from ordering postsec-ondary education costs as part of child support orders entered on or after July 1, 1997, unless otherwise agreed to by the parties in a written stipulation after July 1,1997.

We conclude, therefore, that § 14-10-115(1.5)(c) was modified to distinguish between orders for postseeondary education costs entered prior to, and after, July 1,1997, when, in a distinct departure from prior law, the court could no longer enter orders for postseeondary education expenses absent written agreement of the parties. See § 14-10-115(1.6). We further conclude that § 14-10-115(1.5)(e.5) was added in 1997 to clarify that the convoluted legislation that had been passed since 1991 was applicable to all orders established or modified prior to July 1, 1997.

In 1993, the General Assembly first limited the postseeondary education obligation to no more than what the obligor was required to pay under the most recent child support order. At that time, an expansive definition of postseeondary expenses was adopted. See Colo. Sess. Laws 1993, ch. 270, § 14 — 10— 115(1.5)(b), (e) at 1556-57.

However, the 1994 statutory amendments, which initially were applicable only to actions commenced on or after July 1, 1994, revised the limitation on the obligation for postsec-ondary education expenses to the presumed guideline support amount and severely restricted postseeondary education costs to include only tuition, books, and fees. See Colo. Sess. Laws 1994, ch. 266, § 14-10-115(1.5)(b), (e) at 1536-37.

In our view, by explicitly providing that the 1994 amendments could be applied to modify any order entered between July 1, 1991, and July 1,1997, the General Assembly eliminated any doubt that was created by the serial changes made to § 14^10-115(1.5)(b). See generally Shreves I, supra.

Thus, we agree with the reasoning of In re Marriage of Croivder, supra. As stated there, In re Marriage of Channell, 797 P.2d 819 (Colo.App.1990), did not preclude the relief sought based on a later statutory change. Indeed, § 14 — 10—115(1.5)(c.5) also provides only that orders entered prior to July 1, 1997, which do not provide for post-secondary education expenses, shall not be modified pursuant to subsection (1.5). The converse inference supports our conclusion that orders containing such provisions entered prior to July 1, 1997, may be modified under the applicable statutory changes.

Here, the magistrate concluded that father’s obligation for the child’s postseeondary education expenses was reaffirmed in 1994 and was nonmodifiable. This was error, as stated in In re Marriage of Crowder, supra, and reiterated above. The 1994 stipulation was made an order of court, and the parties specifically agreed that the applicable child support guidelines and Colorado law were to be the standard for determining all child support obligations. Postseeondary education expenses are a form of child support obligations under the statute, and the parties themselves listed college tuition and expenses as a subcategory of child support in their 1984 separation agreement. Therefore, the magistrate erred in failing to grant father’s request for declaratory relief to modify his postsecondary education obligation to conform to the statutory limits.

We note that the child support guidelines also allow the court on remand to consider additional factors that actually diminish the basic needs of the.child as deductions from the basic child support obligation. Section 14 — 10—115(13)(b), C.R.S.2003; see In re Marriage of Pollock, 881 P.2d 470 (Colo.App.1994)(extent to which a child’s income should be applied to the payment of educational expenses or basic support is a question of fact to be determined by the trial court under the totality of circumstances in each case).

C.

Nevertheless, relying on In re Marriage of Eaton, 894 P.2d 56 (Colo.App.1995), mother argues that father was required to show a substantial and continuing change of circumstances to modify his postsecondary education obligation. We are not persuaded.

In Eaton, the division did not consider the provisions of § 14-10-122(4), C.R.S.2003, which were, added in 1991, that “Notwithstanding the provisions of subsection (1) of this section, the provisions of any decree respecting child support may be modified as a result of the change in age for the duty of support as provided in section 14-10-115(1.5).” See Colo. Sess. Laws 1991, ch. 38 at 238. Thus, we conclude that § 14-10-122(4) was intended to allow modification of both child support and postsecondary education support solely on the basis of the statutory changes.

Moreover, Eaton was decided before the 1997 modification to § 14-10-115(1.5)(c) that statutory changes to subsection (1.5) apply to any orders entered prior to July 1, 1997, which is the case here. See also In re Marriage of Crowder, supra (holding that the trial court erred by failing to limit father’s college cost obligation to the presumed monthly child support guideline amount as required by § 14 — 10—115(1.5)(b)(I)).

The 1997 addition of § 14-10-115(1.5)(c.5) buttresses this conclusion. Subsection (1.5)(c.5) explicitly provides that orders entered between July 1,1991, and July 1, 1997, may be modified to provide for postseeond-ary education expenses, subject to the statute as it existed on July 1,1994.

Accordingly, it is necessary to remand this matter to the district court to modify father’s obligation in accordance with the statutory provisions discussed above.

II.

Father asserts that the magistrate erred in calculating his 2001 income by projecting for a full year the income he earned over the most recent seven-month period in 2001, rather than by averaging it with prior years over some reasonable period of time. The magistrate calculated father’s child support obligation for each year based on the income earned in that year. We need not address the merits of father’s assertion.

Because of our resolution of the issues relating to postsecondary education expenses, on remand, the district court will, in any event, need to apply the child support guidelines to father’s 2001 income to determine the limits of his obligation for postsec-ondary education expenses. Accordingly, the district court is directed to redetermine father’s 2001 income based on the evidence now available for the full year and to recalculate his entire support obligation for the year based on that determination.

III.

Father also contends that the magistrate erred in retroactively calculating support prior to mother’s filing of the motion to modify support. We reject this characterization of the magistrate’s order.

The magistrate’s determination of the amount owed under the parties’ 1994 agreement constituted enforcement of the child support obligation specified there, which was intended to be calculated after the fact. Therefore, the calculation did not constitute retroactive modification of the decree, which is generally prohibited. See In re Marriage of Meisner, 807 P.2d 1205 (Colo.App.1990).

IV.

Father next contends that the magistrate abused its discretion in awarding mother $14,000 in attorney fees because father does not earn as great a percentage of the combined total income of the parties as the trial court found and the record showed that mother’s net worth exceeded his. We disagree.

In awarding fees and costs under § 14-10-119, C.R.S.2003, the district court must consider the relative financial status of each party by making findings concerning their relative incomes, assets, and liabilities. In re Marriage of Aldrich, 945 P.2d 1370 (Colo.1997).

Here, the court’s order shows that it considered the parties’ relative financial status. Given the wide disparity in the parties’ incomes, we cannot say as a matter of law that the court’s failure to calculate precisely the net assets renders the order an abuse of discretion.

V.

In light of our disposition of the case, we need not address father’s assertions that the court erred as a matter of law in failing to consider his financial obligations to his other children and that the magistrate made additional pervasive errors that require reversal.

VI.

We decline to address mother’s request for attorney fees and costs on appeal, made for the first time after briefing on appeal was completed. Such issues can be addressed by the district court on remand.

The orders are reversed to the extent that they provide that father’s obligation for post-secondary education expenses (1) extends beyond the earlier of the child’s twenty-first birthday or an undergraduate degree, (2) exceeds the presumptive guideline amount, and (3) applies to postsecondary expenses beyond those defined in the statute. The case is remanded to the district court for further proceedings and entry of a revised order consistent with this opinion. In all other respects, the orders are affirmed.

Judge CASEBOLT and Judge GRAHAM concur.


author: Judge NIETO.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Allen MILLER, Defendant-Appellant.
    No. 02CA0850.
    Colorado Court of Appeals, Div. II.
    March 11, 2004.
    Certiorari Granted July 26, 2004.

      Ken Salazar, Attorney General, Rebecca A. Adams, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Suzan Trinh Almony, Broomfield, Colorado, for DefendanU-Appellant.

       Justice COATS does not participate.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const, art. VI, § 5(3) and § 24-51-1105, C.R.S.2003.

   Opinion by

Judge NIETO.

Defendant, Allen Miller, appeals the judgment of conviction entered on jury verdicts finding him guilty of two counts of manufacturing a schedule II controlled substance, two counts of possession with intent to distribute a schedule II controlled substance, two counts of possession of a schedule II controlled substance, and five special offender counts, and the trial court’s adjudication of six habitual criminal counts. We affirm.

While investigating defendant for illegal drug activity, a police officer discovered two active arrest warrants for defendant arising out of a misdemeanor case and a traffic case. The officer, in the company of fellow officers, entered defendant’s home to arrest him on the two warrants. While there, the officer saw evidence of a methamphetamine laboratory in plain view. The officers secured the premises, and one officer left to obtain a search warrant. Defendant was taken into custody, but was later released on bond.

A month after the arrest, the investigating officer received information that defendant had set up a new methamphetamine laboratory in his home. The officer returned to defendant’s home and asked defendant for consent to search. Defendant refused, but defendant’s wife, who was a co-occupant of the home, consented to the search. While the officer was obtaining consent from defendant’s wife, he noticed drug paraphernalia in plain view on the coffee table. As a result, the officer secured the house, obtained a search warrant, searched the house, and arrested defendant again.

Charges arising out of both incidents were combined for trial, and defendant was found guilty of the above offenses.

I.

Defendant first contends the court erred in denying his motion to suppress evidence discovered during the execution of the two arrest warrants. Defendant argues that the arrest was an impermissible pretext to search his home for suspected drug activity. We disagree.

One exception to the search warrant requirement is the discovery of evidence in plain view to an officer who is validly on the premises. Evidence in plain view may form the basis for probable cause to obtain a search warrant. People v. Clements, 661 P.2d 267 (Colo.1983).

An outstanding arrest warrant provides probable cause to arrest the person named in the warrant. People v. Thompson, 793 P.2d 1173 (Colo.1990). Police officers may enter a suspect’s home to arrest him or her when they have an arrest warrant and have reason to believe the suspect is within. People v. Dotson, 55 P.3d 175 (Colo.App. 2002).

Where a defendant is detained for a traffic violation and the police officer develops probable cause to search the vehicle, the officer’s ulterior motive for the search does not invalidate it. Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). “[Otherwise lawful conduct by law enforcement officers is not made illegal or unconstitutional merely because the officers’ subjective intent is illegitimate.” People v. Altman, 938 P.2d 142, 146 (Colo.1997). The validity of the search must be determined by an objective analysis of the circumstances supporting probable cause for the search and not upon the subjective intent of the officer. People v. Altman, supra; People v. Rodriguez, 945 P.2d 1351 (Colo.1997).

Here, the officer had two warrants for defendant’s arrest, and he had reason to believe defendant was in the residence. We can perceive no reason to analyze a plain view search incident to an arrest upon a warrant in a manner more restrictive then a search based upon probable cause developed after a traffic stop. An arrest on a warrant and a temporary detention during a traffic stop are both seizures under the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979).

Therefore, we hold that the validity of such a search must be determined by an objective analysis of the validity of the arrest warrant and the circumstances of its execution and not by an analysis of the officer’s motives for executing the warrant.

Defendant argues that the correct test to determine whether the arrest was pretextual is the “reasonable officer” test articulated in People v. Hauseman, 900 P.2d 74 (Colo. 1995). However, Whren, Altman, and Rodriguez all reject this test in favor of an objective analysis of the circumstances giving rise to probable cause to arrest.

Further, Hauseman is distinguishable because it involved an inventory search. The Supreme Court in Whren recognized a clear distinction between inventory and administrative searches, which do not require probable cause, and searches based on probable cause.

Defendant does not dispute that the warrants were valid, and, except as discussed below, he does not challenge the manner in which they were executed. Because the officer had valid warrants for defendant’s arrest and no basis exists for challenging the manner of execution, the officer’s motives have no bearing on the validity of the plain view search incident to defendant’s arrest. Therefore, the officer properly used the information gained in the plain view search to obtain a search warrant.

Accordingly, we conclude that, based on this argument, the trial court correctly denied the motion to suppress.

II.

Defendant next contends that the court erred in denying his motion to suppress because the police officer did not identify himself and announce his intentions prior to a forced entry into the residence. We disagree.

A lawful search must be preceded by a lawful entry into the premises to be searched. When executing a warrant, police officers must identify themselves and their purpose prior to a forced entry, unless an exception applies. However, the “knock and announce” requirement is applicable only if the police conduct constituted a forced entry. People v. Gifford, 782 P.2d 795, 797 (Colo. 1989).

No forced entry occurs when a police officer, in possession of a valid search warrant, rings the doorbell and merely steps across the threshold of a house in a nonviolent and nonforceful manner before identifying himself and his purpose of executing a warrant. People v. Campbell, 185 Colo. 312, 524 P.2d 73 (1974). Further, police officers, in possession of a valid arrest warrant, who peacefully open a door and enter a house in response to an invitation from within, do not effectuate a forced entry. People v. Towery, 194 Colo. 486, 573 P.2d 104 (1978).

Here, the trial court found that an officer knocked on the door, defendant’s wife answered, and the officers entered. The officer testified that he identified himself as a police officer and asked whether defendant was there. The court found that defendant’s wife told the officer that defendant was there and offered to go get him. The court also found that the officer responded, “no, we’ll get him ourselves,” and then he entered and arrested defendant. These findings do not support a conclusion that the officer forced an entry into the home.

We must accept the trial court’s factual findings if they are supported by the record, as they are here. People v. Perea, 74 P.3d 326 (Colo.App.2002). The trial court did not make a specific finding that the officers did not effectuate a forced entry, but it found that the manner of executing the warrant was proper. Because the factual findings permit no other conclusion, we conclude there was no forced entry and the “knock and announce” requirement was inapplicable.

III.

Defendant next contends the court erred in finding the consent to search given by his wife was voluntary because the court did not consider her particular characteristics when evaluating the circumstances in which the consent was given. We disagree.

A warrantless search is constitutionally justified when it is conducted pursuant to voluntary consent. Consent to search is voluntary if it is the product of an essentially free and unconstrained choice and not the result of circumstances that overbear the consenting party’s will. The prosecution bears the burden of proving by clear and convincing evidence that a person’s consent to search was voluntarily given.- Before a court may conclude that consent was voluntarily given, it must find no objective evidence of coercion, duress, deception, promises, threats, intrusive conduct, or other undue influence by the police that critically impaired the person’s judgment. If there is objective evidence of coercive police conduct, the court should then consider the person’s subjective characteristics and whether the police conduct could reasonably have appeared to be coercive. People v. Magallanes-Aragon, 948 P.2d 528 (Colo. 1997).

At the hearing, an officer testified that while obtaining consent from defendant’s wife, he did not make any threats or promises to her, demand to be allowed in the house, or draw his gun. A written consent to search form signed by defendant’s wife and a handwritten statement signed by her were admitted into evidence. The written statement was signed several months after the search and stated that she had consented to the search without any intimidation by the police.

Defendant’s wife testified at the suppression hearing that she gave consent under duress caused by threats from the officer and her forcible removal from the home. Another witness also testified that the wife was forcibly removed from the house.

The trial court considered all this evidence and specifically rejected the evidence of force and threats. It found the testimony of defendant’s wife to be incredible. It then found that the consent to search had been freely and voluntarily given.

Because the trial court found no credible objective evidence of coercive police conduct, there was no need to consider the particular characteristics of defendant’s wife. See People v. Johnson, 865 P.2d 836 (Colo.1994)(in the absence of evidence of coercive police conduct, trial court’s finding of voluntary consent should not be disturbed).

Accordingly, we will not disturb the trial court’s finding that defendant’s wife voluntarily consented to the search of her home. See People v. Stark, 691 P.2d 334 (Colo.1984)(appellate court will not substitute its judgment as to the weight of evidence and credibility of witness for that of the trial court).

IV.

Defendant next contends that a co-occupant of his home may not validly consent to a search after he had expressly refused consent to search. We disagree.

One of the exceptions to the requirement of a valid search warrant is a search conducted pursuant to consent freely and voluntarily given. A valid consent may be given by a defendant or by another person with common authority over the premises to be searched. Common authority rests on mutual use of the property by persons generally having joint access or control for most purposes. This joint access makes it reasonable to conclude that any of the co-inhabitants has the right to permit an inspection and that the co-inhabitants have assumed the risk that one of them might permit the common area to be searched. “The valid consent of a person with ‘common authority’ will justify a warrantless search of a residence despite the physical presence of a nonconsent-ing co-occupant.” People v. Sanders, 904 P.2d 1311, 1313 (Colo.1995).

Here, defendant does not dispute that his wife had common authority over the premises. Rather, he argues that her consent could not override his express refusal. We disagree.

Although Colorado courts have never ruled on this issue, other jurisdictions have found that a co-occupant’s consent was valid despite the defendant’s refusal to grant consent. United States v. Morning, 64 F.3d 531 (9th Cir.1995)(a consent to search by a co-occupant is valid against a defendant when both are at the scene, and the defendant has refused consent); Lenz v. Winburn, 51 F.3d 1540, 1548 (11th Cir.1995)(third party with common authority can consent, “even when a present subject of the search objects”); United States v. Donlin, 982 F.2d 31 (1st Cir.1992); J.L. Foti Constr. Co. v. Donovan, 786 F.2d 714, 716-17 (6th Cir.1986); United States v. Baldwin, 644 F.2d 381 (5th Cir. 1981); United States v. Hendrix, 595 F.2d 883 (D.C.Cir.1979); United States v. Sumlin, 567 F.2d 684 (6th Cir.1977); State v. Ramold, 2 Neb.App. 545, 511 N.W.2d 789 (1994); People v. Cosme, 48 N.Y.2d 286, 422 N.Y.S.2d 652, 397 N.E.2d 1319 (1979).

The rationale behind permitting a co-occupant to consent to a warrantless search is that “a joint occupant assumes the risk of his exposing their common private areas to such a search.” United States v. Sumlin, supra, 567 F.2d at 688. Thus, a defendant’s refusal to consent in no way lessens this assumed risk. “Although there is always the fond hope that a co-occupant will follow one’s known wishes, the risks remain. A defendant cannot expect sole exclusionary authority unless he lives alone, or at least has a special and private space within the joint residence.” United States v. Morning, supra, 64 F.3d at 536.

We find support for this rationale in People v. Sanders, supra. There, the court held that a search based on the consent of a co-oeeupant was valid despite the physical presence of the defendant, who was also a co-occupant and who did not consent. The court relied on the assumption of the risk rationale and stated, “the rationale is not dependent upon the defendant’s consent or non-consent to the search.” People v. Sanders, supra, 904 P.2d at 1315.

The authority of a co-occupant to consent to a search is based on the co-occupant’s privilege in his or her own right to permit a search of premises over which he or she has a joint right of access and control. People v. Sanders, supra (citing United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974)). Thus, the fact that the search is focused on discovering information about a defendant does not give the defendant the right to preempt or overrule the consent given by a co-occupant in his or her own right. For the same reasons, after the court has determined that the co-occupant has joint access to, and control over, the premises to be searched, there is no need for the court to weigh the relative strengths of the defendant’s and the co-occupant’s privacy interests.

Accordingly, we conclude that defendant’s express refusal to consent to a search did not invalidate the search based on the free and voluntary consent of his wife, a co-occupant of the premises who had joint access and control.

V.

Finally, defendant contends that the trial court erred in finding that his challenge to two prior Colorado convictions used in the habitual criminal proceeding was time barred by § 16-5^102, C.R.S.2003. We perceive no error.

Defendant’s sole argument is that he timely challenged these convictions in the courts that entered them, and therefore, the time bar should not apply in this case. However, the record on appeal does not show any information relating to postjudgment proceedings in the courts that entered the convictions.

It is the defendant’s responsibility to designate the necessary record on appeal. Any facts not appearing in the record cannot be reviewed, and the presumption is that material portions omitted from the record would support the judgment. People v. Wells, 776 P.2d 386 (Colo.1989). Because defendant failed to include documentation concerning these alleged timely challenges, we must presume that the omitted portions of the record support the trial court’s judgment, and therefore, the court properly considered the two Colorado convictions.

Defendant also challenges three of the Louisiana felony convictions used in the habitual criminal proceeding, but he raises no challenge to a fourth Louisiana felony conviction. We need not consider defendant’s challenge because the unchallenged Louisiana conviction together with the two Colorado convictions referred to above justify defendant’s sentence under § 18-1.3-801(2), C.R.S.2003, which requires only three prior felony convictions to impose habitual criminal sentencing. Vacating the finding of additional convictions would have no effect on defendant’s sentence. See People v. McMurrey, 39 P.3d 1221 (Colo.App.2001)(an issue on appeal is moot when the relief, if granted, would have no practical effect on the controversy).

Therefore, we conclude that defendant was properly sentenced as a habitual criminal under § 18-1.3-801(2).

VI.

We have considered defendant’s contentions relating to the admission of evidence, and we perceive no error in the trial court’s rulings.

The judgment is affirmed.

Judge PICCONE and Justice ERICKSON concur.


author: Judge GRAHAM.

text:
    Linda SVENDSEN, Plaintiff-Appellant, v. Walter G. ROBINSON, M.D., and Woodridge Orthopaedic and Spine Center, P.C., Defendants-Appellees.
    No. 03CA0365.
    Colorado Court of Appeals, Div IV.
    March 25, 2004.
    Certiorari Denied Aug. 2, 2004.

      Andrew T. Brake, P.C., Lee T. Judd, En-glewood, Colorado, for Plaintiff-Appellant.
    Pryor, Johnson, Montoya, Carney & Karr, P.C., Irving G. Johnson, Elizabeth C. Moran, Felice S. Haas, Greenwood Village, Colorado, for Defendants-Appellees.
   Opinion by

Judge GRAHAM.

Plaintiff, Linda Svendsen, appeals the order striking her expert witness and the summary judgment entered in favor of defendants, Walter G. Robinson, M.D. and Woodridge Orthopaedic and Spine Center, P.C., on her medical malpractice claim. We affirm.

I.

Plaintiff contends that the trial court erred in granting defendants’ motion to strike her standard of care expert without affording her an opportunity to respond to the motion. We perceive no reversible error.

Defendants filed a motion to strike plaintiffs standard of care expert for failure to comply with C.R.C.P. 26. The court granted the motion before time had expired for plaintiff to file her response, and defendants then filed a motion for summary judgment. After receiving the court’s order, plaintiff filed a motion for reconsideration and a response to defendants’ motion to strike. The trial court set the matter for hearing. Before the hearing, plaintiff filed a supplement to her motion for reconsideration, a supplemental endorsement of her standard of care expert, and a response to defendants’ motion for summary judgment.

At the hearing, plaintiff explained how her expert disclosures complied with C.R.C.P. 26, or alternatively, why noncompliance was substantially justified or harmless to defendants. After considering all the motions, the court upheld its order striking plaintiffs standard of care expert and entered summary judgment in favor of defendants.

We conclude that, although the court entered its order to strike prematurely, plaintiff was not prejudiced because she had an adequate opportunity to show why the motion should not have been granted. Any error was therefore harmless. See Ferrera v. Nielsen, 799 P.2d 458 (Colo.App.1990)(no error where plaintiff requested and received an opportunity to respond in its summary judgment order to the new issue raised by the trial court).

II.

Plaintiff next contends that the trial court improperly precluded the testimony of her expert witness under C.R.C.P. 37(c) 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 concluded that: (1) plaintiffs failure to comply with C.R.C.P. 26(a)(2)(B)(I) precluded defendants from fully and effectively preparing for the expert’s deposition; (2) plaintiff did not establish that the failure was harmless; (3) the preparation of this case was expensive, and any further delay enabling plaintiff to comply with all pretrial requirements would cause defendants to incur substantial duplicative costs and fees; (4) plaintiff was aware of the disclosure requirements and did not establish difficulty obtaining the information from the experts; and (5) there was no way to easily identify or, more importantly, locate the expert’s prior testimony because the expert disclosures did not provide the jurisdiction, venue, or case numbers, nor was there information regarding where in the United States the listed parties and attorneys might be located.

We review the trial court’s decision to preclude an expert witness for abuse of discretion. Carlson v. Ferris, 58 P.3d 1055 (Colo.App.2002), aff'd, 85 P.3d 504 (Colo. 2003); Sheid v. Hewlett Packard, 826 P.2d 396 (Colo.App.1991).

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. 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. Todd v. Bear Valley Vill. Apartments, 980 P.2d 973 (Colo.1999).

C.R.C.P. 26(a)(2)(B)(I) requires that witnesses retained to provide expert testimony submit 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. C.R.C.P. 37(c)(1); Carlson v. Ferris, supra.

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. Carlson u Ferris, supra.

Here, plaintiffs expert initially provided defendants with a “sales by customer” list that included the attorney’s name and firm, the date of the testimony, the amount charged, and in some instances, the case name. The list also contained a numerical code, which, as the expert later explained during his deposition, identified whether it was arbitration or trial testimony. The list did not contain ease numbers, the name of the court or agency, or the venue or state where the attorneys were located. Furthermore, this list only included testimony taken at trials and arbitrations, not at depositions.

Because of the insufficient disclosures, in connection with their notice of deposition sent to plaintiffs expert, defendants requested, among other things, “a listing of deposition and trial testimony expert has provided over the past four years.” Defendants explained that plaintiff was required to provide this information under C.R.C.P. 26(a)(2)(B) and that it was included in the deposition notice because the expert endorsement was insufficient under Carlson v. Ferris, supra. Defendants stated that they would not require the expert to supply the additional information that was requested with the notice of deposition if the expert complied with C.R.C.P. 26 before his deposition. Defendants warned that if the proper disclosures were not made, they would file a motion to strike the expert witness.

Defendants were not given any information regarding the expert’s prior deposition testimony until the day of his deposition in California. That deposition list, however, consisted only of the date and the attorney’s name. Again, there was no case number, ease name, court, or party name listed. This deposition list was never supplemented.

We agree with the trial court that the disclosures of the expert failed to meet the mínimums of C.R.C.P. 26(a)(2)(B)(I) either in the initial or supplemental disclosures, and plaintiff provided no justification for the noncompliance. The expert had a list of the attorneys’ names, as well as sufficient other information so that, with some diligent effort, he could have supplied the information required in C.R.C.P. 26. See Carlson v. Ferris, supra.

Nor was the 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. The purpose of providing a list of prior cases is to enable opposing counsel to obtain prior testimony of the expert that may be relevant to the proposed testimony in the pending case 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. Carlson v. Ferris, supra; see also Todd v. Bear Valley Vill. Apartments, supra (in evaluating harmlessness under C.R.C.P. 37(c), the inquiry is whether the failure to disclose the evidence in a timely fashion will prejudice the opposing party by denying that party an adequate opportunity to defend against the evidence).

Plaintiff contends that there was substantial compliance with the rule when the expert disclosed to defendants the case names, attorney names, firm names, and dates of prior testimony during his deposition. We disagree.

One purpose of C.R.C.P. 26 is to avoid having to take depositions in the interest of judicial economy and cost reduction. The burden was on plaintiff and her expert to furnish the required information in advance; it was not shifted to defendants to discover it by deposition. See Carlson v. Ferris, supra. Furthermore, although plaintiff supplemented some of the expert’s listings by providing the venue and case name, the list was not updated until after the expert’s deposition.

With the information supplied, defendants would be required to contact each of the attorneys listed and identify the cases. Of necessity, each attorney contacted would be required to cooperate by searching indexes and files to obtain the information and by providing such information in a timely manner. Although ultimately defendants might have obtained the information in those cases where the attorneys were sufficiently identified and cooperative, the burden was shifted from the disclosing party to the discovering party to identify the cases. To obtain the information that plaintiff is required to disclose, defendants were, and would be, required to expend substantial time and resources. See Nguyen v. IBP, Inc., 162 F.R.D. 675 (D.Kan.1995)(cooperation required of more than 100 attorneys who were not involved in the case).

We also reject plaintiffs contention that, before a court may preclude expert testimony under C.R.C.P. 37(c)(1), the court first must order compliance and then allow the nondisclosing party to correct the deficiencies. A C.R.C.P. 37 sanction is automatic and self-executing. Todd v. Bear Valley Vill. Apartments, supra; see also Ortiz-Lopez v. Sociedad Espanola de Auxilio Mutuo Y Beneficiencia, 248 F.3d 29 (1st Cir.2001)(a court order need not first be violated before the court may impose the sanction provided under Fed.R.Civ.P. 37(e)); Palmer v. Rhodes Mach, 187 F.R.D. 653, 657 (N.D.Okla. 1999)(there is no “one warning” exception contemplated by Fed.R.Civ.P. 26(a)); Miller v. Rowtech, LLC, 3 P.3d 492 (Colo.App. 2000)(a motion for sanctions filed by the opposing party is not a prerequisite to the imposition of the sanction).

Defendants warned plaintiff that her expert disclosures were deficient. Although plaintiff had several opportunities to supplement the expert’s disclosures before the deposition, she failed to do so.

Finally, defendants’ request for information beyond what is required by C.R.C.P. 26(a)(2)(B)(I) does not relieve the expert from disclosing information required by that rule.

Thus, we conclude that the trial court did not abuse its discretion in precluding the testimony of plaintiffs standard of care expert.

III.

We also reject plaintiffs contention that the trial court erred in granting summary judgment in favor of defendants.

We review a summary judgment de novo, using the same standards that govern the trial court’s determination. Thus, we uphold summary judgment only if the pleadings and supporting documents demonstrate that there is no genuine issue for trial as to any material fact and that the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(e); Aspen Wilderness Workshop, Inc. v. Colo. Water Conservation Bd., 901 P.2d 1251 (Colo.1995).

In a medical malpractice case, the burden is on the plaintiff to establish a prima facie case of negligence. To establish a prima facie case, the plaintiff must show that the defendant failed to conform to the standard of care. The standard of care in a medical malpractice action is measured by whether a reasonably careful physician in the same medical discipline as the defendant would have acted in the same manner as did the defendant in treating and caring for the plaintiff. Melville v. Southward, 791 P.2d 383 (Colo.1990).

Unless the subject matter of a medical malpractice action lies within the ambit of common knowledge or experience of ordinary persons, the plaintiff must establish the controlling standard of care, as well as the defendant’s failure to adhere to that standard, by expert opinion testimony. Without expert opinion testimony in such eases, the trier of fact would be left with no standard at all against which to evaluate the defendant’s conduct. Melville v. Southward, supra.

Here, once the testimony of plaintiffs standard of care expert was precluded, it could not be considered on summary judgment, and therefore, plaintiff was unable to demonstrate that a genuine issue of material fact existed to support her medical malpractice claim. Thus, summary judgment was proper.

The judgment and order are affirmed.

Judge CASEBOLT and Judge LOEB concur.