author: MANNHEIMER, Judge.

text:
    Betty J. MAGEE, Appellant, v. STATE of Alaska, Appellee.
    No. A-8184.
    Court of Appeals of Alaska.
    May 23, 2003.
    Rehearing Denied June 20, 2003.
    Verne E. Rupright, Rupright & Foster, LLC, Wasilla, for Appellant.
    Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

In this case, a judicial officer issued what he called a "contingent" warrant that authorized the police to search Betty Magee's residence if a certain pre-condition was fulfilled. When the police applied for this warrant, they were searching for a "meth lab"-that is, a site for illegally manufacturing methamphetamine. The officer who applied for the warrant conceded that the police currently lacked sufficient justification to search Ma-gee's residence. However, the officer argued-and the issuing magistrate agreed-that there would be sufficient justification for a search of Magee's residence if the police first searched another location (a location for which they had a normal warrant) and found additional incriminatory evidence there. The magistrate therefore issued a warrant that authorized the police to search Magee's residence contingent upon the police first searching the other location and finding evidence of either first-degree or second-degree misconduct involving a controlled substance.

The question is whether such a warrant violates the Fourth Amendment to the United States Constitution. As we explain in more detail below, we conclude that this search warrant is unconstitutional because the contingent event that triggered the officers' authority to conduct the search-the finding of incriminatory evidence at the other location-was not defined precisely enough to assure judicial control over the search process.

Underlying facts

In late 2000, the Matanuska-Susitna Nar-cotiecs Team was investigating a possible meth lab at the residence of Donald Wares. According to information gathered by the police, Wares had been purchasing or otherwise accumulating large quantities of chemicals that, in combination, could be used to manufacture methamphetamine.

Wares lived in a semi-rural part of Wasilla, on acreage located at 3998 Pittman Road. Wares's property adjoined Magee's, who owned acreage at 3900 Pittman Road.

Wares had certain connections to the Ma-gee property. He was a friend of Robert Magee, who the police mistakenly believed was Betty Magee's son. (Robert is, in fact, Magee's former brother-in-law.) The police had information that Robert Magee had accompanied Wares on one occasion when Wares purchased toluene, a solvent that can be used in the manufacture of methamphetamine. And the address on Wares's vehicle registration was Magee's address (8900 Pittman Road) instead of his own address (8998 Pittman Road).

On January 2, 2001, the police applied for a warrant to search Wares's property (8998 Pittman). The validity of that warrant is not contested here. However, at the same time, the police applied for a "contingent" warrant to search Magee's property (8900 Pittman).

The officer who applied for these two warrants forthrightly told the magistrate that he did not believe that the police currently had sufficient information to justify a search warrant for Magee's property. However, the officer argued that if the police searched Wares's property and found evidence of a meth lab, then a search warrant for Magee's property would be justified. Specifically, the officer argued that the discovery of the meth lab at Wares's property, combined with Wares's association with Robert Magee and his other connections to the Magee property, would establish probable cause to believe that meth-making supplies, or illegal precursor chemicals, or paperwork documenting the illegal operation would be found on the Ma-gee property.

The magistrate agreed that if the police found a meth lab at Wares's property, or even "evidence of significant precursors" of methamphetamine, this would establish sufficient justification for a search of Magee's property. The magistrate declared that he would issue the contingent warrant.

However, the proposed warrant prepared by the police stated that the search of Ma-gee's property could take place if they found "any] evidence of illegal drug activity" at 3998 Pittman Road (ie., at Wares's property). The magistrate declined to issue the warrant with that wording:

The Court: "Contingent upon finding evidence of ... illegal drug activity"-I think that's a little broad. I mean, if you find two joints at [Wares's property], that's illegal drug activity, but ... that's certainly not enough to [justify the requested search of Magee's property]. [The warrant will be contingent on your finding] evidence of misconduct involving a controlled substance in the ... second or first degree at [Wares's property].

Accordingly, the magistrate drew a line through the words "Megal drug activity" and wrote "MICS 2< or 1<" (misconduct involving a controlled substance in the second or first degree). That is, the magistrate authorized the police to search Magee's property contingent upon their finding some evidence of either first-degree or second-degree controlled substance misconduct at Wares's property when they executed the search warrant for that property.

The basic rationale of "amticipatory" or "contingent" search warrants

In Magee's case, the police and the magistrate referred to the search warrant as a "contingent" warrant. Generally, the cases and the literature on this topic refer to this type of warrant as an "anticipatory" warrant. Whatever the label, the basic idea is that the warrant authorizes a search if some future event occurs.

The quintessential anticipatory warrant involves the controlled delivery of contraband-illegal drugs, illegal weapons, ete.-to an identified physical location. Generally, in such cases, the package or other shipping container has already been intercepted and opened (either by the police or by agents of the shipper), so the police know to a reasonable certainty that the package contains contraband. The only element of probable cause still lacking is the fact that this contraband has not yet arrived on the premises that the police wish to search. See Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (3rd ed.1996), § 3.7(c), Vol. 2, pp. 362-63, 368.

Under the Fourth Amendment, a court can issue a warrant to search particular premises only if there is probable cause to believe that evidence of a crime will be found there. In the case of a controlled delivery of contraband, until the moment when the contraband is delivered to the suspect premises, it is clear that this contraband will not be found on the premises. But in such cases, most jurisdictions have allowed judicial officers to issue an anticipatory warrant that pre-au-thorizes a search of the premises, contingent upon the delivery being made. These jurisdictions have ruled that such search warrants are valid so long as the information supporting the warrant establishes probable cause to believe that the specified contraband will be present on the premises at the time of the search. LaFave, supra, § 3.7(c), Vol. 2, p. 364. This position was adopted by our supreme court in Johnson v. State, 617 P.2d 1117, 1124 & n. 11 (Alaska 1980).

In cases involving controlled deliveries, an anticipatory warrant plainly offers advantages to the police. Since the police control when the delivery will be made, they can lay out their information to a magistrate in advance. Once the delivery is made, the officers can immediately proceed to make the search-without the interruption of trying to find a magistrate to hear this final piece of the probable cause showing, and without the administrative bother of asking a judicial officer to stand by on the telephone, waiting for the moment when the contraband is delivered.

The question is whether this increase in efficiency can be squared with the Constitution. In general, courts have answered "yes". LaFave quotes the following passage from Alvidres v. Superior Court, 12 Cal.App.3d 575, 90 Cal.Rptr. 682, 686 (1970), as a "sound" explanation of why this type of anticipatory warrant does not violate the Fourth Amendment: ‘

We must ask ourselves whether the objective of the [warrant clause] is better served by permitting officers [in controlled delivery cases] to obtain a warrant in advance of the delivery of the nareotic or by forcing them to go to the seene without a warrant and there make a decision at the risk of being second-guessed by the judi-clary if they are successful in recovering evidence or contraband. We believe that achievement of the goals [of] the exelusion-ary ... rule is best attained by permitting officers to seek warrants in advance when they can clearly demonstrate that their right to search will exist within a reasonable time in the future.

LaFave, supra, § 3.7(c), Vol. 2, p. 365.

The requirement that the contingency be strictly defined

Among the jurisdictions that allow judicial officers to issue anticipatory warrants, there is general agreement that the contingency-the event that triggers the authority to conduct the search-must be strictly and precisely defined. LaFave quotes the following passage from the First Circuit's decision in United States v. Ricciardelli as an aceu-rate statement of this requirement:

[The magistrate must ensure that the triggering event is both ascertainable and preordained. The warrant should restrict the officers' discretion in detecting the occurrence of the event to almost ministerial proportions, similar to [the officers'] discretion in locating the place to be searched. Only then ... are the ends of explicitness and clarity preserved.

LaFave, supra, § 3.7(c), Vol. 2, p. 369, quoting Ricciardelli, 998 F.2d 8, 12 (1st Cir.1993). To ensure that the police play merely a "ministerial" role in deciding whether the triggering event has occurred, courts require that the triggering event be "clear, explicit, and narrowly drawn".

Courts generally assert that the rationale for this requirement is to prevent "premature" execution of the warrant, either by accident or as a result of police manipulation. See LaFave, supra, p. 368 and 2003 Supplement, p. 57. But the true rationale, it seems to us, is to preserve the constitutional mandate that judicial officers, and not police officers, are to decide whether the police may conduct the search.

The Constitution forbids a judicial officer from ceding to the police the authority to decide whether a search is justified. The law further requires that, when the police apply for a warrant, the judicial officer must be presented with the particular facts that the police are relying on to justify the search. Moreover, to assure an aggrieved citizen's right to challenge a search, and to ensure proper judicial review of the magistrate's decision, a contemporaneous record (an affidavit, or testimony presented in court, or both) must be made of the facts that the police are relying on.

Anticipatory warrants create the danger that these rules will be circumvented or defeated. If the police are given discretion in deciding whether the triggering event has occurred, or if the triggering event is defined so broadly that a range of occurrences might arguably be interpreted as triggering the officers' authority to conduct the requested search, then we can no longer be sure that the judicial officer is the one who is controlling the process. In such instances, the validity of the search will rest, in part, on facts whose relevant particulars are unknown to the magistrate. And by the same token, the pre-search record-the affidavits and testimony presented to the magistrate-will not reveal all of the facts that the government is relying on to justify the search.

For these reasons, we hold that when a judicial officer issues an anticipatory warrant, the contingency that triggers the officers' authority to conduct the search must be explicit, it must be clear, and it must be drawn so narrowly that the officers' role in detecting the occurrence of this event is essentially ministerial-similar to the clarity and precision that is required in the warrant's description of the premises to be searched.

(As we stated in State v. Gutman, 670 P.2d 1166 (Alaska App.1983), a judicial officer who issues an anticipatory warrant should normally delineate the triggering contingency in the text of the warrant itself. Id. at 1173 n. 5. However, an anticipatory warrant will be valid so long as (1) the contingency is clearly described in the affidavits and/or the testimony supporting the warrant, and (2) the text of the warrant expressly incorporates that contingency by reference. Id.)

The First Circuit's decision in Ricciardelli imposes a second requirement on anticipatory warrants: the requirement that the triggering contingency be "pre-ordained"-i.s., that the triggering event be on an apparently "sure and irreversible" course toward fulfillment. LaFave endorses this second requirement, at least when government agents are the ones orchestrating the occurrence of the triggering event. LaFave, supra, § 3.7(c), Vol. 2, p. 369 and 2003 Supplement, p. 57.

In State v. Gutman, 670 P.2d 1166 (Alaska App.1983), this Court upheld an anticipatory warrant for which the triggering "event" was actually a series of events culminating in the anticipated sale of cocaine by a third person to a police informant. The occurrence of each step in this series of events was obviously not "pre-ordained", "sure", or inevitable. Several courts (in addition to the First Circuit in Ricciardelli) have either held or indicated that they would not uphold an anticipatory warrant under such facts.

Because the Gutman decision does not discuss this point of law, it is unclear whether this issue received active consideration. However, we need not examine this problem further because, as we explain next, the anti-eipatory warrant in this case fails to satisfy the first requirement described above: the requirement that the triggering contingency be "clear, explicit, and narrowly drawn".

The warrant in the present case does not define the triggering contingency with sufficient clarity and precision

The warrant in the present case authorized the police to search Magee's property if they first searched Wares's property and found any evidence of either first-degree or second-degree controlled substance misconduct. This contingency is not sufficiently precise to' pass constitutional muster,

Even if the warrant had described the contingent event as "the discovery of a meth lab", one might still reasonably doubt whether this definition was sufficiently "clear, explicit, and narrowly drawn" to ensure that the police played only a "ministerial" role in assessing whether the contingency was met. It would be one thing if the police caught people red-handed in the act of extracting methamphetamine from precursor chemicals. But what if only the precursor chemicals were found? What if no precursor chemicals were found, but only the more basic chemicals needed to conduct the manufacturing process? And what if no chemicals at all were found, but only vessels and other hardware that could be used to manufacture methamphetamine if one had the raw materials?

Conceivably, all of these contingencies might qualify as "the discovery of a meth lab". Thus, even if the warrant had been worded as precisely as that, we would still have serious doubts concerning its constitutionality.

But the warrant was worded far more broadly. It authorized the police to search Magee's residence if, during their prior search of Wares's property, they discovered evidence of either first-degree or second-degree controlled substance misconduct.

The phrase "evidence of first-degree or second-degree misconduct involving controlled substances" encompasses far more than the discovery of the meth lab that the police were looking for. For instance, the search warrant application contained information that Wares had been purchasing quantities of acetone and toluene; both of . these chemicals are solvents that can be used in the manufacture of methamphetamine. Thus, if the police merely found a container (either full or empty) of either acetone or toluene at Wares's property, the police could reasonably claim that this container constituted "evidence" of second-degree controlled substance misconduct-thus authorizing them to search Magee's property.

We further note that, as defined in AS 11.71.020, the offense of second-degree controlled substance misconduct includes not only the manufacture or possession with intent to deliver methamphetamine, but also the manufacture or possession with intent to deliver of any other schedule IA controlled substance-such as heroin, methadone, opium , or codeine. Thus, had the police searched Wares's residence and discovered any of these other substances under cireum-stances indicating that these substances were being manufactured or were intended for sale, the police could reasonably conclude that they were now authorized to search Magee's residence.

Similarly, first-degree controlled substance misconduct includes not only the delivery of methamphetamine to a minor, but also the delivery of any schedule IA, IIA, or IIIA substance to a minor-i.e., substances such as cocaine, PCP, LSD, mescaline, barbiturates , codeine medications , and hashish . Had the police discovered any of these substances under cireumstances indicating potential sales to minors, they likewise could reasonably conclude that they were now authorized to search Magee's residence.

Moreover, first-degree controlled substance misconduct also includes the offense of "engaging in a continuing eriminal enterprise". See AS 11.71.010(a)(8). This offense consists of committing any felony defined in AS 11.71 if that felony is "part of a continuing series of five or more violations of [AS 11.71]" which the defendant "undertakes in concert with at least five other persons [who are] organized, supervised, or otherwise managed" by the defendant, and if the defendant obtains "substantial income or resources" from this series of crimes.

The police already had information linking at least five other people to Wares's activities. The search warrant application names eight people (including Robert Magee) who were associates of Wares and were at least potentially involved in his suspected drug activities. Thus, i#f the police searched Wares's residence and found evidence of any felony drug offense defined in AS 11.71, they conceivably could have concluded that they now had evidence of first-degree controlled substance misconduct-and that they were therefore now authorized to search Magee's residence.

The Constitution requires that the police play a purely ministerial role in identifying the occurrence of the contingency that triggers their authority under an anticipatory warrant. But if the police are to play this ministerial role, if the decision to authorize the search is to remain with the magistrate and not be ceded to the police, then the triggering contingency must be a clearly defined, readily ascertainable event-something that everyone can agree (both beforehand and afterward) has either happened or failed to happen. The contingency at issue here-the discovery of "evidence" of first-degree or second-degree controlled substance misconduct-is not a clearly defined, readily ascertainable event. Rather, this phrase authorized a search of Magee's property if the police made any one of a wide range of potential discoveries at the Wares property. Many of these discoveries were so ill-defined that people could reasonably debate (either at the time of the discovery or later) whether they had occurred.

For these reasons, we conclude that the anticipatory warrant in this case is unconstitutional. By defining the triggering contin-geney as the discovery of any evidence of either first-degree or second-degree controlled substance misconduct, the magistrate gave the police far too much discretion to decide whether to search Magee's property.

There was no clearly defined, readily ascertainable thing that the police were looking for at Wares's residence, nor was there a clearly defined, readily ascertainable event that the police expected to occur at Wares's residence. Accordingly, this case presents the type of situation where the police were obliged to follow a normal warrant application process. That is, the police could conduct the search of Wares's property (a search for which they already had probable cause) and then, if that search yielded pertinent information that potentially justified a search of Magee's residence, the police could include that information in their application for a second warrant. But without a contingency so precisely defined as to eliminate police discretion and maintain judicial control of the process, the anticipatory warrant was unlawful.

Conclusion

The evidence obtained under the search warrant is suppressed, and the judgement of the superior court is REVERSED.

      . United States v. Moetamedi, 46 F.3d 225, 229 (2nd Cir.1995). Accord United States v. Garcia, 882 F.2d 699, 703-04 (2nd Cir.1989).

      . See United States v. Leidner, 99 F.3d 1423, 1429 (7th Cir.1996); United States v. Hendricks, 743 F.2d 653, 654-55 (9th Cir.1984); Commonwealth v. Coleman, 769 A.2d 462, 467-69 (Pa.Super.2001); State v. Canelo, 139 N.H. 376, 653 A.2d 1097, 1101-02 (1995); State v. Ulrich, 265 N.J.Super. 569, 628 A.2d 368, 371-72 (App.1993); People v. Glen, 30 N.Y.2d 252, 331 N.Y.S.2d 656, 282 N.E.2d 614, 617-18 (1972).

      . AS 11.71.020(a)(2).

      . AS 11.71.140(d)(11).

      . AS 11.71.140(c)(40).

      . AS 11.71.140(b)(1).

      . AS 11.71.140(b)(1)(G).

      . AS 11.71.010(a)(1)-(2).

      . AS 11.71.150(c).

      . AS 11.71.150(d)(6).

      . AS 11.71.150(b)(12).

      . AS 11.71.150(b)(13).

      . AS 11.71.160(c)(3).

      . AS 11.71.160(e).

      . AS 11.71.160(f).


source: Caselaw Access Project

license: Public Domain

text:
    Betty J. MAGEE, Appellant, v. STATE of Alaska, Appellee.
    No. A-08184.
    Court of Appeals of Alaska.
    June 20, 2003.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   Order

In Magee v. State, Alaska App. Opinion No. 1876, 77 P.3d 732, 2003 WL 21230948 (May 23, 2003), we reversed Magee's conviction because we concluded that the anticipatory warrant authorizing the search of Ma-gee's residence was unlawful. Specifically, we held that the contingency that triggered the officers' authority to conduct the search was not defined in the warrant with sufficient clarity and precision to meet constitutional requirements. Id., slip opinion at pages 9-12, 736-737.

The State has now petitioned us for rehearing, asserting that this issue was not properly before this Court.

The State notes that Magee's appeal arose from a Cooksey plea; that is, Magee pleaded no contest to the eriminal charge while reserving her right to assert that the search warrant was issued improperly. The State asserts that, although Magee preserved some attacks on the search warrant when she entered her Cooskey plea, she did not preserve the claim that the contingency described in the warrant was unlawfully imprecise. The State further asserts that, because this exact claim was not preserved, "this issue ... was not briefed by the parties ... on appeal". Finally, the State complains that, because this issue was not briefed on appeal, the State lost the opportunity to argue that, even if the warrant was invalid, the evidence obtained pursuant to that warrant might yet be admissible under the theories of good faith or inevitable discovery.

When an appeal comes to this Court pursuant to a Cooksey plea, we normally do not engage in a sua sponte examination of the trial court proceedings to see if the issues raised on appeal comport with the issues preserved when the plea was entered. We trust that, if the defendant deviates from those preserved issues, the State will tell us.

In Magee's case, the State did not complain (until now) that Magee was attempting to argue an issue that was not preserved. More importantly, and contrary to the State's assertion in its petition for rehearing, the State did brief the issue of whether the contingency described in the warrant was sufficiently definite to pass constitutional muster. Pages 15 through 17 of the State's brief are devoted to the issue of whether the contingency described in the warrant was sufficiently specific and objectively identifiable. The State did not argue that Magee was attempting to inject an unpreserved issue into the appeal; rather, the State acknowledged the issue and briefed the merits of this issue.

Moreover, because the State acknowledged this issue and briefed it, we do not agree that the State had no fair opportunity to argue in the alternative that, even if the contingency was invalid, the evidence obtained pursuant to the warrant might still be admissible under the doctrines of good faith or inevitable discovery. Because the State recognized and briefed the issue of whether the contingency was valid, the State was on notice that it might lose this issue and that, if there were alternative arguments to be made, it was time to make them.

For these reasons, the State's petition for rehearing is DENIED.

Entered at the direction of the Court.


text:
    Wayne SCHOUTEN and Roy Roberts, Appellants, v. STATE of Alaska, Appellee.
    Nos. A-8432, A-8433.
    Court of Appeals of Alaska.
    Sept. 26, 2003.

      Sean E. Brown, Angstman Law Office, Be-thel, for Appellants.
    Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Ap-pellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

Wayne Schouten and Roy Roberts were charged (by citation) with taking a moose out of season; Schouten was also charged (by citation) with hunting without a valid license. When no prosecutor or police officer appeared on behalf of the State at the defendants' scheduled arraignment, Magistrate Monte L. Brice dismissed the charges against the two defendants:

The Court: [TJhere is no one here representing the State. And it appears to me that if the State was interested in prosecuting these matters, they would have had somebody here. And since they don't appear interested enough in prosecuting these cases to have someone here in court, I'm going to dismiss [these] cases for failure to prosecute.
Now, that doesn't mean that you're going to get away with it again, because when [the authorities] learn that they lose their cases by not showing up, the next time they cite you, they're going to make sure [that] they're going to be here. So you folks need to understand that.

The defendants apparently understood Magistrate Brice to have dismissed the charges "with prejudice"-i.e., with no possibility of re-filing. But later events cast doubt on the defendants' understanding of the magistrate's ruling.

Four days after the defendants' arraignment, after the State learned that the charges against the two defendants had been dismissed, the State again charged the defendants with taking the same moose out of season. The two defendants asked Magistrate Brice to dismiss the renewed charges. When he refused, the defendants entered Cooksey pleas of no contest, reserving their right to contest the State's re-filing of the charges.

The defendants' argument that Magistrate Brice dismissed the charges with prejudice

The defendants first argument is that Magistrate Brice dismissed the original charges with prejudice when no one from the State appeared at the arraignment. But when the defendants presented this contention to Magistrate Brice, the magistrate declared that he had not intended to dismiss the charges with prejudice:

[My] remarks [at the defendants' original arraignment] were intended to constitute nothing other than a dismissal for failure to prosecute.... Nothing [said] at the original arraignment or set forth in the [later] written dismissals indicate[s] a clear intent ... to bar ... future prosecution. [This was] exactly the opposite of [my] actual intent, which was to dismiss without prejudice. ©

"Memorandum and Order Denying Motions to Dismiss" (July 10, 2002), page 2 (emphasis in the original).

On appeal, the defendants argue that we must not take Magistrate Brice at his word. The defendants contend that the magistrate's original remarks clearly reveal his intention to dismiss the charges with prejudice-and that the remarks we have just quoted are simply the magistrate's "[after-the-fact] rationalization", an attempt to avoid the consequences of his original decision.

We do not agree. Magistrate Brice's remarks at the defendants' original arraignment are, at best, ambiguous on the issue of whether he intended to dismiss the charges with prejudice. Given this ambiguity, it was not improper for the magistrate to clarify what he meant.

Moreover, if Magistrate Brice had in fact intended to dismiss the charges with prejudice, this would have been an abuse of his discretion. Judges are authorized to dismiss criminal charges in the furtherance of justice. See Alaska Criminal Rule 48(c). But not every misstep or act of inattention on the part of the prosecuting authorities warrants dismissal. - Although Magistrate Brice was properly concerned with the State's failure to send a representative to the defendants' arraignment, the State's inaction did not result in actual legal prejudice to the defendants.

Had the defendants wished, they could have gone forward with the arraignment, entered "not guilty" pleas, and asked the court to schedule a trial date. Instead, the defendants chose to accept the windfall of dismissal. But the State's failure to appear at the arraignment, and the consequent delay of a few days' time, did not prejudice the defendants' ability to defend the charges or disadvantage the defendants in any other substantive way. Under our decision in State v. Jones, 751 P.2d 1379 (Alaska App.1988), it would have been an abuse of discretion for Magistrate Brice to dismiss the charges with prejudice. Id. at 1382-83.

For these reasons, we conclude that the charges against the defendants were not dismissed with prejudice, at least not by judicial decision. But the defendants also argue that the charges were dismissed with prejudice by operation of law.

The defendants' argument that, by reason of AS 12.20.020 and AS 12.20.050, Magistrate Brice's dismissal of the charges barred the State from re-filing the charges

The defendants' second argument is that, regardless of whether Magistrate Brice intended to dismiss the charges with prejudice, his act of dismissing the charges had that effect as a matter of law. The defendants' argument is premised on two statutes, AS 12.20.020 and AS 12.20.050(a).

The first statute, AS 12.20.020, declares:

When acquittal or dismissal is not a bar. If ... the charge [against a defendant] is dismissed upon an objection to its form or substance, or discharged for want of prosecution, without a judgment of acquittal or in bar of another prosecution, it is not an acquittal of the crime and does not bar a subsequent prosecution for the same crime.

At first reading, this statute seemingly undercuts the defendants' argument that the State was barred from re-filing the charges against them. The statute declares that when a criminal charge is dismissed "for want of prosecution" (which was Magistrate Brice's stated basis for dismissing the charges against the defendants), the dismissal "does not bar a subsequent prosecution for the same crime" unless the dismissal is accompanied by "a judgment of acquittal or [a judgment] in bar of another prosecution". We have just concluded that Magistrate Brice did not issue a judgement "in bar of another prosecution" when he dismissed the charges at the defendants' original arraignment-and that, even had he intended to do so, his action would have constituted an abuse of discretion. Thus, AS 12.20.020 seems to say that, under the circumstances of this case, the State was empowered to refile the charges.

But the defendants argue that the phrase "[judgment] in bar of another prosecution" is meant to constitute a cross-reference to another statute, AS 12.20.050(a)-a statute that specifies certain situations in which dismissal of a criminal charge does bar renewed prosecution as a matter of law. AS 12.20.050(a) reads:

Dismissal as bar. (a) It is a bar to another prosecution for the same crime if the crime is a misdemeanor, but it is not a bar if the crime charged is a felony when a person is
(1) held to answer to the grand jury and the court dismisse[d] the charge before the case [was] presented to the grand jury upon the motion of the prosecuting attorney; [or]
(2) held to answer to the grand jury and the court dismisse[d] the charge because the indictment [was] not found against the person at the next session of the grand Jury; or ,
(3) indicted for a crime and the indictment is dismissed because the trial [was] not held within a reasonable period of time, there [was] not good cause shown for the delay, and the delay was not upon the application of the defendant or with the defendant's consent.

The defendants argue that, by inserting the phrase "[Jjudgment] in bar of another prosecution" in AS 12.20.020, the Alaska Legislature intended to incorporate the provisions of AS 12.20.050(a)-so that, regardless of whether the judge's order of dismissal expressly states that the charge is being dismissed "with prejudice", the dismissal will automatically be "with prejudice" in any of the circumstances described in AS 12.20.050(a).

Although the defendants' construction of AS 12.20.020 seems plausible, we need not decide whether it is true-because the issue is moot. As we are about to explain, even if AS 12.20.020 does incorporate the provisions of AS 12.20.050(a), none of those provisions barred the State from re-filing the charges against the defendants in this case.

The defendants and the State differ sharply in their construction of the introductory clauses of AS 12.20.050(a): "It is a bar to another prosecution for the same erime if the crime is a misdemeanor, but it is not a bar if the crime charged is a felony when ...". The defendants assert that these introductory clauses should be interpreted in this manner: © |

[Dismissal] is a bar to another prosecution for the same crime if the crime is a misdemeanor, but it is not a bar if the crime charged is a felony when ...

The State, on the other hand, asserts that these introductory clauses should be interpreted as follows:

It is a bar to another prosecution for the same crime if the crime is a misdemeanor, but it is not a bar if the erime charged is a felony{,] when ...

In other words, the State argues that the statute means, "Any of the three circumstances listed below constitutes a bar to further prosecution if the erime is a misdemean- or, but not if the erime is a felony".

We agree with the State's construction of the statute for two reasons.

First, the defendants' construction of the statute rests on the notion that the title and the text of the statute should be run together, forming a single linguistic unit: "Dismissal ... is a bar to another prosecution". This violates the principle that the section headings and captions of statutes are not part of the law. See AS 01.05.006; Denuptiis v. Unocal Corp., 63 P.3d 272, 278 n. 15 (Alaska 2003); Ketchikan Retail Liquor Dealers Ass'n v. Alcoholic Beverage Control Board, 602 P.2d 434, 438 (Alaska 1979).

Second, and more importantly, the defendants' construction of the statute is inconsistent with the legislature's intent,. When we examine the statutory antecedents of AS 12.20.050(a), it is clear that the statute means what the State suggests: In any of the three cireumstances listed in the statute, the dismissal of a criminal charge will constitute a bar to further prosecution if the crime is a misdemeanor, but not if the crime is a felony.

AS 12.20.050(a) began life 140 years ago. Our statute is derived from four provisions of the code of criminal procedure adopted by the Oregon legislature in 1864 and later codified as §§ 1528, 1524, 1527, and 1529 of Hill's Annotated Laws of Oregon. These four Oregon statutes dealt with various cireumstances in which a criminal charge might be dismissed, and the effect of that dismissal on the government's authority to re-file the charge.

When, in March 1899, Congress enacted a code of laws to govern the Alaska Territory, they included these same four provisions. In the Carter Code of 1900, these four provisions are numbered §§ 257, 258, 261, and 263 of the Code of Criminal Procedure. In the 1913 Compiled Laws of the Territory of Alaska, these same four statutes were carried forward, verbatim, as §§ 2366, 2367, 2370, and 2372.

When, at the direction of the Alaska Territorial Legislature, Alaska law was recodified in 1933, the four statutes were again carried forward, this time with added section headings: see 1988 CLA, §§ 5441, 5442, 5445, and 5448. In addition, the 1983 recodification included a fifth related statute, § 5446, that had been added by the territorial legislature in 1925.

In 1949, when Alaska territorial law was recodified for the last time before statehood, the original four statutes and the newcomer fifth statute were once more carried forward-this time, as components of Title 66, Chapter 18, Article 2. See 1949 ACLA, §§ 66-18-11, 66-18-12, 66-18-18, 66-18-16, and 66-18-18.

Here is how these five statutes read from 1949 until 1962 (when they were superseded by AS 12.20.050(2)):

§ 66-18-11. Dismissal before presenting case to grand jury: Order. That any criminal case in the courts of the Territory of Alaska in which any person has been held to answer to the Grand Jury on any criminal charge may be, by the District Court upon motion of the United States Attorney or any of his assistants, dismissed before presentation of the case to the Grand Jury, and the defendant so held to answer discharged, and such dismissal of the case and discharge of the defendant shall have the same effect as though the case were dismissed after indictment had been found and returned; but in case of the dismissal of a proceeding and the discharge of a defendant as herein provided, the reasons for the dismissal must be set forth in the order, which must be entered in the journal.
§ 66-18-12. Dismissal for delay: Delay in finding indictment. That when a person has been held to answer for a crime, i#f an indictment be not found against him at the next term of the court at which he is held to answer, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown.
§ 66-18-13. Delay in trial. That if a defendant, indicted for a crime, whose trial has not been postponed upon his application or by his consent, be not brought to trial at the next term of the court in which the indictment is triable after it is found, the court must order the indictment to be dismissed, unless good cause to the contrary be shown.
§ 66-18-16. Dismissal in furtherance of justice: Order. That the court may, either on its own motion or upon the application of the United States attorney, and in furtherance of justice, order an action, after indictment, to be dismissed; but in that case the reasons of the dismissal must be set forth in the order, which must be entered in the journal.
§ 66-18-18. Dismissal as bar to another prosecution. That an order for the dismissal of a charge or action, as provided in this article, is a bar to another prosecution for the same crime, if it be a misdemeanor, but it is not a bar if the crime charged be a felony.

In this 1949 formulation of the law, the wording of § 66-18-18 (the "dismissal as bar" statute) is unambiguous, and this unambiguous wording supports the State's interpretation of our current statute. 1949 ACLA § 66-18-18 declares that if a criminal charge is dismissed "as provided in this article" i.e., if it is dismissed for one of the reasons specified in the preceding statutes-then "the order [of] dismissal ... is a bar to another prosecution for the same crime if [the crime] be a misdemeanor, but it is not a bar if the crime charged be a felony". This is precisely the construction that the State would give to our current statute, AS 12.20.050(a).

When our state legislature enacted a new code of criminal procedure in 1962 (see SLA 1962, ch. 34, § 1.15), they combined four of these five pre-existing statutes into one new statute-AS 12.20.050(a). The four source statutes are easily identified in the new statute. The introductory language of AS 12.20.050(2) corresponds to § 66-18-18:

It is a bar to another prosecution for the same crime if the crime is a misdemeanor, but it is not a bar if the crime charged is a felony when a person is ...

AS 12.20.050(a) then lists three circumstances in which a court may dismiss a criminal charge. Subsection (1) of the statute corresponds to former § 66-18-11; this subsection authorizes dismissal of a criminal charge at the behest of the government, after the defendant has been held to answer but before the grand jury has considered the case. Subsection (2) of the statute corresponds to former § 66-18-12; this subsection authorizes dismissal of a criminal charge when the defendant is held to answer but no indictment is returned against the defendant at the next session of the grand jury. Finally, subsection (8) of the statute corresponds to former § 66-18-18; this subsection authorizes dismissal of a criminal charge if the defendant is not brought to trial within a reasonable amount of time, unless there is good cause for the delay or the delay was requested by, or granted with the consent of, the defendant.

(The fifth and remaining provision of the 1949 code, § 66-18-16, has no counterpart in the 1962 recodification of the statutes. 1949 ACLA § 66-18-16 authorized the court to dismiss a criminal charge after the defendant was indicted, if the dismissal was "in furtherance of justice"; the statute also declared that the court could order such a dismissal "either on its own motion or upon the application of the United States attorney". Although § 66-18-16 did not become a part of the recodified statutes in 1962, it survived as Alaska Criminal Rule 48(c).)

Because AS 12.20.050(a) is so obviously drawn from the four predecessor statutes-1949 ACLA §§ 66-18-11, 66-18-12, 66-18-13, and 66-18-18-we conclude that the legislature intended AS 12.20.050(a) to serve as a restatement of those four prior statutes. And in particular, because the introductory language of AS 12.20.050(a) is drawn from 1949 ACLA § 66-18-18, we will interpret that introductory language to mean the same thing as 1949 ACLA § 66-18-18.

As we have already noted, 1949 ACLA § 66-18-18 answers the question of statutory construction that divides the parties in the present case. This statute declared that dismissal of a criminal charge under any provision of Article 2, Chapter 18, Title 66-i.e., dismissal under §§ 66-18-11, 12, 18, or 16-"[was] a bar to another prosecution for the same crime, if [the crime was] a misdemeanor, but [was] not a bar if the crime charged [was] a felony". This confirms the State's interpretation of the debated language in our current statute, AS 12.20.050(a): if a court dismisses a criminal charge under any of the three cireumstances listed in AS 12.20.050(a), this dismissal constitutes a bar to further prosecution if the crime is a misdemeanor, but not if the crime is a felony.

For these reasons, we reject the defendants' suggested interpretation of AS 12.20.050(a) and adopt the State's interpretation.

The remaining question is whether AS 12.20.050(a), so interpreted, forbids the State from continuing to prosecute the defendants.

The defendants are charged with a misdemeanor. Thus, if any of the three subsections of AS 12.20.050(a) applies to their case, the dismissal of the original charges will constitute a bar to further prosecution. But none of the three subsections is applicable here. Subsections (1) and (2) apply only to defendants who have been "held to answer to the grand jury", while subsection (8) applies only to defendants who have been "indicted".

To judges and lawyers who did not practice criminal law when Alaska was a territory, it may seem strange for the legislature to have enacted a statute in 1962 dealing with cases in which a defendant has been "held to answer" or "indicted" for a misdemeanor. Nowadays, defendants are rarely indicted for a misdemeanor, since misdemeanors can be prosecuted by complaint. Moreover, there is currently no recognized procedure for holding someone to answer for a misdemeanor: under Alaska Criminal Rules 5(e) and 5.1, the only defendants who are "held to answer" are those charged with felonies.

But ever since the earliest days of Alaska law, grand juries have been (and remain) empowered to "inquire into all crimes committed or triable within the jurisdiction of the court" (including misdemeanors), and a grand jury can indict a defendant regardless of whether the defendant has previously been held to answer. And although there is apparently no current procedure for holding a misdemeanor defendant to answer to the grand jury, Alaska's former statutes authorized a magistrate to hold a person to answer to the grand jury for any crime.

The law was apparently similar for several years after statehood as well. Although Alaska Criminal Rule 5 now distinguishes between defendants who are charged with misdemeanors and defendants who are charged with felonies, the original version of Criminal Rule 5(c) declared that no defendant should be "called upon to plead" when they appeared before a magistrate; instead, the magistrate's duty (in all cases) was to decide whether the defendant should be held to answer. Currently, Criminal Rule 5(e) reserves this type of procedure for felony defendants, while Criminal Rule 5(f) and District Court Criminal Rule 1 prescribe a different procedure for misdemeanor defendants-requiring the magistrate to ask the defendant to enter a plea, and also requiring the magistrate to set a date for the defendant's trial. But our current procedures were not enacted until 1973, when the supreme court rewrote Criminal Rule 5 and District Court Criminal Rule 1.

Thus, even though AS 12.20.050(a) may not apply to many misdemeanor charges these days, this is only because our criminal procedures have changed since the statute was formulated. The statute continues to mean what it says: the restrictions on further prosecution of misdemeanors apply only when the defendant has been held to answer or has been indicted. See State v. Reinhart, 26 Or. 466, 38 P. 822, 824 (1895) (adopting the same interpretation of the ancestral Oregon statute, Hill's Annotated Laws of Oregon § 1529).

We therefore hold that AS 12.20.050(a) did not bar the State from re-filing the charges against the defendants in this case. Accordingly, the judgements of the district court are AFFIRMED.

      . 5 AAC 85.045 and AS 16.05.330(a), respectively.

      . See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).

      . The one exception is that the section headings within the Uniform Commercial Code, AS 45.01, are parts of the code. See AS 45.01.109.

      . Thomas H. Carter, The Laws of Alaska (Callaghan and Company 1900).

      . See SLA 1925, ch. 6, § 1.

      . All five of these provisions begin with the word "that". The origin of this grammatical construction is apparently found in the 1899 federal statute that created the Alaska Penal Code. The federal statute began with these words: "Be it enacted by the Senate and the House of Representatives of the United States of America in Congress assembled ... ". See Thomas H. Carter, The Laws of Alaska, page 1. As a consequence, almost every provision of the code began with the word "that".
      When, at the direction of the Alaska Legislature (see SLA 1933, ch. 126), Henry Roden and his fellow members of the Law Revision Board re-codified the laws of Alaska in 1933, they removed the "that's from these statutes. See 1933 CLA, §§ 5441, 5442, 5445, and 5448. In his prefatory "Certificate" to the 1933 codification, Mr. Roden explained that "[in codifying and editing these laws, [he had] made some changes, merely verbal, without changing the original intent of the law."
      But despite Mr. Roden's commendable efforts, the "that's sneaked back into these five statutes when the laws of Alaska were recodified in 1949. See 1949 ACLA, §§ 66-18-12, 66-18-13, 66-18-16, and 66-18-18.

      . The 1949 version of this provision, § 66-18-18, uses the word "article"-to wit, "as provided in this article". All prior versions of this statute used the word "chapter". This word was changed because all of the pertinent statutes were part of the same chapter in Alaska's earlier codes (e.g., Chapter 29 of the Carter Code) but, in the 1949 recodification, these statutes were collected in Article 2 of Chapter 18, Title 66.

      . Criminal Rule 43(c) states: "[Dismissall In Furtherance of Justice. The court may, either on its own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action, after indictment or waiver of indictment, to be dismissed. The reasons for the dismissal shall be set forth in the order."

      . A grand jury can indict for any crime (listed here in reverse chronological order): AS 12.40.030; 1949 ACLA § 66-8-21; 1933 CLA § 5177; 1913 CLA § 2122; Carter Code (1900), Criminal Procedure, § 13.
      A grand jury can indict a defendant regardless of whether the defendant has been held to answer (again, listed in reverse chronological order): AS 12.40.050; 1949 ACLA § 66-8-22; 1933 CLA § 5178; 1913 CLA § 2123; Carter Code (1900), Criminal Procedure, § 14.

      . See 1949 ACLA §§ 66-6-1 through 66-6-33; 1933 CLA §§ 5771-5802; 1913 CLA §§ 2408-2439; Carter Code (1900), Criminal Procedure, §§ 299-330.

      . See Supreme Court Order No. 4 (effective October 4, 1959).

      . See Supreme Court Order No. 157 (effective February 15, 1973).


author: Chief Justice MULLARKEY Justice COATS

text:
    In the Matter of the TITLE, BALLOT TITLE AND SUBMISSION CLAUSE FOR 2003-2004 #53 & #54, Donald Ryan, Petitioners, v. Douglas Campbell and Dennis Polhill, and William Hobbs, Alan J. Gilbert and Charles Pike, Title Board, Respondents. In the Matter of the Title, Ballot Title and Submission Clause for 2003-2004 #53 & #54 and Failure to Set Title for 2003-2004 # 51 & #52, Douglas Campbell and Dennis Polhill, Petitioners, v. William Hobbs, Alan J. Gilbert and Charles Pike, Title Board, Respondents.
    Nos. 03SA206, 03SA207.
    Supreme Court of Colorado, En Banc.
    Oct. 6, 2003.
    Donald J. Ryan, Wheat Ridge, Colorado, pro se.
    Douglas Campbell and Dennis Polhill, Ar-vada, Colorado, pro se.
    Ken Salazar, Attorney General, Maurice G. Knaizer, Deputy Attorney General, Denver, Colorado, Attorneys for the Title Board.
   Chief Justice MULLARKEY

delivered the Opinion of the Court.

These appeals pursuant to section 1-40-107(2), 1 C.R.S. (2002), challenge the actions of the title board ("the board") setting the title, ballot title, submission clause, and summary (collectively, "the title") for proposed initiatives 2008-04 # 51 ("# 51") and 2008-04 #52 ("# 52"), and refusing to set titles for proposed initiatives 2008-04 #53 ("# 58") and 2003-04 # 54 ("# 54").

Our decision, In the Matter of the Title, Ballot, and Submission Clause for 2003-2004 # 32 & #33 and Failure to Set Title for 2003-2004 # 21 & #22, 16 P.3d 460 (Colo.2003), controls in this case. Accordingly, we hold that # 51, #52, #583, and #54 all contain multiple subjects in violation of article V, section 1(5.5) of the Colorado Constitution.

With respect to #51 and #52, we affirm the action of the board refusing to set the titles. With respect to #58 and #54, we reverse the action of the board and remand this matter to the board with directions to strike the titles and return the initiatives to the proponents. Because we find that all four measures contain multiple subjects, we do not consider whether the titles set by the board conform to the requirements of section 1-40-106(8).

Justice COATS dissents, and Justice KOURLIS joins in the dissent.

Justice COATS

dissenting.

For the reasons expressed in the dissent ing opinion in In the Matter of the Title, Ballot, and Submission Clause for 2003-2004 #32 & #33 and Failure to Set Title for 2003-2004, 76 P.3d 460 (Colo.2003), I would reverse the action of the board in refusing to set titles for ## 51 and 52, and I would affirm its action in setting titles for # 58 and 54. I therefore respectfully dissent.

Justice KOURLIS joins in the dissent.


author: Judge VOGT.

text:
    June LAMB, Plaintiff-Appellee, v. GEICO GENERAL INSURANCE COMPANY, Defendant-Appellant.
    No. 01CA2544.
    Colorado Court of Appeals, Div. IV.
    Nov. 7, 2002.
    Rehearing Denied April 3, 2003.
    Certiorari Denied Oct. 14, 2003.
    Jack Kintzele, Denver, Colorado, for Plaintiff-Appellee.
    Deisch, Marion & Klaus, P.C., Gregory K. Falls, Denver, Colorado, for Defendant-Appellant.

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

   Opinion by

Judge VOGT.

Defendant, GEICO General Insurance Company, appeals the trial court judgment declaring that plaintiff, June Lamb, was entitled to personal injury protection (PIP) coverage under her automobile insurance policy issued by defendant. We reverse and remand with directions.

Plaintiff was injured when the motoreycle she was driving collided with a car. At the time of the accident, plaintiff was the named insured under two insurance policies issued by defendant. The first, a motoreycle insurance policy, provided liability and property damage coverage, but not PIP coverage. The second, an automobile insurance policy covering plaintiff's car, provided PIP coverage, but expressly excluded coverage for bodily injury resulting from the use or operation of a motor vehicle owned by the insured person but not insured under the policy.

After defendant denied plaintiff's claim for PIP benefits, plaintiff brought this action, seeking PIP benefits, additional benefits for property damage under her motorcycle poli-ey, and damages for defendant's asserted bad faith breach of contract. The trial court denied defendant's motion to dismiss the claim for PIP benefits and entered a declaratory judgment that, notwithstanding the poli-ey exclusion, plaintiff was entitled to PIP coverage under her automobile insurance policy in light of DeHerrera v. Sentry Insurance Co., 30 P.3d 167 (Colo.2001). The judgment was certified as final pursuant to C.R.C.P. 54(b).

Defendant contends on appeal that the Colorado Auto Accident Reparations Act, § 10-4-701, et seq., C.R.S.2002 (No-Fault Act), does not require PIP coverage for owner-operators of street motorcycles and that the trial court erred in relying on DeHerrera for a contrary conclusion. We agree.

The interpretation of a statute is a question of law, which we review de novo. See United Airlines, Inc. v. Indus. Claim Appeals Office, 993 P.2d 1152 (Colo.2000); Fazio v. State Farm Mut. Auto. Ins. Co., 55 P.3d 229 (Colo.App.2002).

When construing a statute, we must determine and give effect to the intent of the General Assembly. To do so, we look first to the plain language of the statute. Because it is presumed the General Assembly intends a just and reasonable result when it enacts a statute, a statutory construction that leads to an absurd result will not be followed. Fazio v. State Farm Mut. Auto. Ins. Co., supra.

The No-Fault Act requires insurance carriers to provide certain types of coverage, including, as pertinent here, PIP coverage applicable to:

(a) Accidental bodily injury sustained by the named insured when injured in an accident involving any motor vehicle, regardless of whether the accident occurs in this state or in any other jurisdiction, except where the injury is the result of the use or operation of the named insured's own motor vehicle mot actually covered under the terms of [the No-Fault Act];
(b) Accidental bodily injury sustained by a relative of the named insured under the cireumstances described in paragraph (a) of this subsection (1) ... except where the relative is injured as a result of the use or operation of his own motor vehicle not actually covered under the terms of [the No-Fault Act].

Section 10-4-707(1), C.R.9S.2002 (emphasis added).

As used elsewhere in the No-Fault Act, "motor vehicle" generally does not include a motorcycle. See § 10-4-708(7), C.R.8.2002 ("Motor vehicle' means any vehicle of a type required to be registered and licensed under the laws of this state and which is designed to be propelled by an engine or motor; except that this term does not include motorcycles ...."). However, motorcycles are included within the term "motor vehicle" as it is used in § 10-4-707(1)(a) & (b), quoted above. Section 10-4-707(2), C.R.S.2002, states: .

The definition of "motor vehicle" set forth in section 10-4-7083(7) shall not apply with respect to [§ 10-4-707(1)(a) & (b)]. For purposes of said paragraphs (a) and (b), "motor, vehicle" means any motor vehicle required to be registered and licensed for operation on the public highways of this state or any other jurisdiction.

Thus, in accordance with the plain language of these provisions, the PIP coverage mandated under the No-Fault Act does not apply to injuries resulting from the insured's use of his or her own motor vehicle-including a motoreycle that is required to be registered and licensed for use on public highways-if such vehicle is not actually covered under the terms of the No-Fault Act.

In Thompson v. Dairyland Insurance Co., 618 P.2d 736 (Colo.App.1980), a division of this court construed this statutory language as excluding street motoreycles from mandatory PIP-coverage. In Thompson, as in this case, the insured contended that the No-Fault Act required his insurer to provide PIP coverage for injuries he received when his street motorcycle was involved in an accident with another vehicle. The division disagreed. It reasoned that, because the plaintiffs motoreycle was undisputedly required to be registered and licensed for operation on public highways and thus was not within the general No-Fault Act definition of "motor vehicle" in § 10-4-708(7), it was not "actually covered" under the terms of the No-Fault Act for purposes of the exclusion in § 10-4-707(M)(@a). Thompson, supro, 618 P.2d at 737.

We agree with the analysis in Thompson and conclude, as did the Thompson division, that § 10-4-707(1)(a) exeludes street motorcycles from mandatory PIP coverage. This construction accords not only with the plain language of § 10-4-707(1)(a) but also with the overall statutory scheme, which reflects an intent to limit mandatory PIP coverage for street motorcycles. See § 10-4-705(8), C.R.9.2002 (limiting compulsory coverage for motorcycles to lability coverage); Fazio v. State Farm Mut. Auto. Ins. Co., supra (insurer not required by No-Fault Act to offer enhanced PIP coverage to motorey-cle owners where, under § 10-4-705(8), no PIP coverage at all is required for motorcycles); Brucha v. Cruise America, Inc., 53 P.3d 700, 701 (Colo.App.2001)(noting in dictum that, under § 10-4-705(8), minimum coverage for motorcycles does not include PIP coverage; "Therefore, unless a motorcycle owner specifically purchases PIP coverage, he or she cannot recover PIP benefits for an injury incurred while operating his or her own motorcycle."); Martinez v. Allstate Ins. Co., 961 P.2d 531 (Colo.App.1997)(under § 10-4-707(1)(b), PIP benefits not available under parents' automobile insurance policy for son injured while operating his own mo-toreycle).

We reject plaintiff's contention that the statutory exeeptions for motor vehicles "not actually covered under the terms of" the No-Fault Act are inapplicable because she had liability coverage for her motoreyele. Liability coverage is required for all motorcycles under the No-Fault Act. See § 10-4-705(8). Thus, under plaintiff's interpretation, the PIP coverage referenced in § 10-4-707(1)(a) & (b) would be available for motorcycles. Such an interpretation would produce an absurd result, in that it would be directly contrary to the express exclusion of motorcycles from mandatory PIP coverage in § 10-4-705(8). See Travelers Indem. Co. v. Barnes, 191 Colo. 278, 552 P.2d 300 (1976)(notwith-standing use of phrase "all coverages" in § 10-4-707(4), provision must be read as limited to PIP coverage to be consistent with other portions of No-Fault Act).

We further conclude that DeHerrera does not warrant a contrary interpretation. In that case, the supreme court considered a claim for PIP coverage for injuries suffered by the son of the named insured when he was riding his off-road motorcycle and was involved in an accident with a pickup truck. The insurance company had denied coverage based on a policy provision exeluding coverage for persons occupying a vehicle that was not a car. The supreme court held that the language in § 10-4-707(1)(a) mandating coverage for a person injured "in an accident involving any motor vehicle" precluded the insurance carrier from excluding coverage for the insured's son. DeHerrera, supra, 30 P.3d at 172.

The court noted that its construction of § 10-4-707(1)(a) was "subject to statutory exclusions," DeHerrera, supra, 30 P.3d at 172, and stated at the conclusion of its discussion of the PIP coverage issue: "The parties have not argued that any statutory exclusions apply. Hence, we hold that the statute unambiguously requires that Sentry provide PIP coverage in this case." DeHerrera, supra, 30 P.3d at 173.

The DeHerrera court also discussed Thompson, observing that, although the facts in that case were similar, the division's reason for denying PIP coverage was inapplicable because the plaintiff in Thompson "fit a statutory exeeption to mandatory PIP coverage, an exception which Sentry has not argued applies in this case." DeHerrera, supra, 30 P.3d at 172. The court added in a footnote:

We express no opinion as to whether the exclusion used to deny PIP coverage in Thompson applies to DeHerrera in this case because Sentry has not argued the applicability of the exclusion and in fact has admitted in the trial court that the exclusion does not apply. The statutory exclusion to mandatory PIP coverage applies to an insured whose injuries result from "the use or operation of the [insured's] own motor vehicle not actually covered under the terms of [the No-Fault Act]." § 10-4-707(1)(b). ... This section of the No Fault Act defines a motor vehicle as a vehicle "required to be licensed for operation on the public highways of this state or any other jurisdiction." § 10-4-707(2). ... Because Sentry admitted that an off-road motorcycle is not a motor vehicle within the applicable definition, it has admitted that the statutory exclusion from mandatory PIP coverage does not apply in this case.

DeHerrera, supra, 30 P.3d at 172 n. 7 (emphasis added). In another footnote, the supreme court acknowledged the analogous exclusion in § 10-4-707(1)(b) and again observed: "Sentry has not argued that this exception applies in this case, and thus we do not address this exclusion in this opinion." DeHerrera, supra, 30 P.3d at 172 n. 6.

In light of the care taken by the supreme court in DeHerrera to limit its holding to the situation before it, which involved an off-road motorcycle not within the statutory exceptions in § 10-4-707(1)(a) & (b), we conclude that the trial court erred in reading DeHerrera to require PIP coverage for the plaintiff in this case.

Accordingly, because motorcycles fall within the statutory exceptions to mandatory PIP coverage, the provision in plaintiff's automobile insurance policy excluding PIP coverage for injuries sustained when she was operating her own noninsured motor vehicle is enforceable as written. Under that policy exclusion, there was no PIP coverage for plaintiff, and defendant did not act in bad faith or breach its insurance contract with her when it denied her claim for PIP benefits.

The judgment is reversed, and the case is remanded with directions to enter judgment for defendant on plaintiff's first and second claims for relief.

Judge DAILEY and Justice ERICKSON concur.


author: Judge TAUBMAN.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Anthony Jerome SMITH, Defendant-Appellant.
    No. 01CA0548.
    Colorado Court of Appeals, Div. V.
    Jan. 2, 2003.
    Rehearing Denied April 17, 2003.
    Certiorari Denied Oct. 6, 2003.

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

Judge TAUBMAN.

Defendant, Anthony Jerome Smith, appeals the judgment of conviction entered on a jury verdict finding him guilty of felony escape. We affirm.

Defendant was serving a sentence of incarceration for first degree assault and attempted escape and was paroled in November 1998. Approximately one month later, the parole board found defendant guilty of several parole violations, but continued his parole with the added condition that he complete 180 days in the Intensive Supervision Program (ISP).

Under ISP, defendant was subject to additional parole conditions, such as remaining at his residence every day during certain "curfew" hours and wearing an electronic monitor (ankle bracelet) at all times. On December 21, 1998, defendant signed a statement indicating that be had a "full and intelligent understanding" of the additional ISP conditions. Defendant also signed a statement pursuant to § 17-27.5-104, C.R.S., 2002, which advised him that failure to remain within the extended limits of his confinement as established by ISP would be deemed an escape from custody and punishable as provided in § 18-8-208, C.R.S.2002, the felony escape statute.

Defendant did not return to his residence on January 1, 1999, and his whereabouts remained unknown until he was arrested in Las Vegas, Nevada, on January 11, 1999.

After a trial, the jury found defendant guilty of felony escape.

I. Conflict Between Statutory Provisions

Defendant contends he was liable only for a parole violation, rather than felony escape, when he did not remain within the limits of his home deténtion, because he was on home detention as a condition of his parole. We disagree. °

[1-51 Appellate courts review interpretations of statutes de novo. When construing statutes, a court's primary purpose is to ascertain and give effect to the intent of the General Assembly. People v. Robertson, 56 P.3d 121, 123 (Colo.App.2002). Courts must construe each provision of a comprehensive statutory scheme to effectuate the overall legislative intent. People v. Garcia, 64 P.3d 857, 2002 WL 58926 (Colo.App. No. 99CA2360, Jan. 17, 2002). To determine intent, courts give statutory terms their commonly accepted meaning. Where the statutory language is unambiguous and the legislative intent reasonably clear, courts do not apply other rules of statutory construction. People v. Triantos, 55 P.3d 131, 134 (Colo.2002). In addition, courts should not presume the General Assembly used language idly. People v. J.J.H., 17 P.3d 159 (Colo.2001).

A person commits felony escape when, as relevant here, he or she knowingly escapes from custody or confinement while in eustody or confinement for a conviction of a felony. The classification of the escape offense depends on the class of the underlying felony for which the defendant was in custody or confinement. See § 18-8-208(1)-(2), C.R.8.2002.

Two other escape statutes are pertinent to our discussion here. First, under the escape provision in the ISP statutes, an offender who does not remain "within the extended limits on his confinement" as established by the ISP is deemed to have escaped from custody and if convicted, is sentenced as provided in the felony escape statute. Section 17-27.5-104.

Second, the statutory provisions governing escape for offenders in a Home Detention Program (HDP) differentiate between offenders directly sentenced to home detention, who are liable for an escape charge if they "faill ] to remain within the- extended limits of a home detention program," and offenders on parole, who are liable for a parole violation if they do not "remain within the limits of a home detention program." Section 17-27.8-106, C.R.98.2002.

For the purposes of the HDP statutes, "home detention" is defined as:

an alternative correctional sentence or term of probation supervision wherein a defendant ... is allowed to serve his sentence ... or a portion thereof, within his home or other approved residence. Such sentence ... shall require the offender to remain within his approved residence ot all times except for approved employment, court-ordered activities, and medical needs.

Section 17-27.8-101(1), C.R.8.2002 (emphasis added).

Under HDP, an offender must be personally monitored by a home detention officer and supervised by electronic monitoring devices capable of detecting and reporting the offender's absence from his or her residence, workplace, or court-approved activity. The offender also must be available to attend any court-ordered counseling, substance abuse treatment, vocational rehabilitation, training, or education. Section 17-27.8-103(2)(a)-(c), C.R.Y.2002. An offender may be placed in HDP by a sentencing judge or the state board of parole as a condition of parole or modified parole. Sections 17-27.8-104, 17-27.8-105, C.R.8.2002.

In contrast, under ISP, an offender must receive the minimum services consistent with public safety, including (1) highly restricted activities; (2) weekly face-to-face contact; (3) daily telephone contact; (4) monitored curfews at the offender's residence at least once a month; (5) employment visitation and monitoring at least twice each month; (6) home visitation; (7) drug and alcohol sereening; (8) treatment referrals and monitoring; and (9) payment of restitution and community service in a manner that minimizes any risk to the public. Section 17-27.5-102(@), C.R.S. 2002. Only the state parole board is authorized to place an offender in ISP as a condition of his or her parole. 106, C.R.8.2002. Section 17-27.5-

A. Escape Provisions

Defendant contends that the escape provision in the ISP statute conflicts with the statutory provision governing escape by offenders in HDP. Thus, he argues, under the rules of statutory construction, including the rule of lenity, when a parolee on home detention leaves the limits of his or her confinement, the parolee commits a parole violation, not a felony escape. The People contend that the trial court properly concluded that defendant was charged with escape from ISP and that the HDP escape statute did not apply to him. We agree with the People.

While a defendant may be placed at home under either HDP or ISP, each program has distinct substantive provisions. Compare § 17-27.5-101, et seq., CRS. 2002(ISP), with § 17-27.8-101, et seq., C.R.8.2002(HDP).

By their plain language, the HDP and ISP statutes concern distinct programs. First, only the parole board can place an offender in ISP. Section 17-27.5-106. In contrast, either the sentencing court or the parole board may place an offender in HDP. Section 17-27.8-104. Second, ISP also contains more stringent and extensive standards than HDP. Compare § 17-27.5-102(2)(ISP), with § 17-27.8-108(2)(a)-(c)(HDP).

The trial court must make a factual determination whether a defendant has been placed in HDP or ISP. Because HDP and ISP are mutually exelusive programs, once the court determines that a defendant was in ISP, we discern no conflict between the statutory provisions of HDP and ISP.

Contrary to the requirements of HDP, defendant's curfew condition here did not require him to remain within his residence at all times, except for approved employment, court-ordered activities, and medical needs. Instead, his ISP condition required him to be at his residence during "curfew" hours, unless a change was approved by his parole officer. Specifically, defendant's curfew hours were Monday through Friday, 7:00 am. to 6:00 p.m., except Wednesday 7:00 am. to 10:00 p.m., Saturday 12:00 pm. to 6:00 p.m., and Sunday 10:00 a.m. to 6:00 p.m. In addition, as the trial court found, defendant signed a document entitled "Intensive Supervision Program Englewood Parole," which did not refer to HDP. Therefore, we conclude that the trial court's finding that defendant was placed in ISP, rather than HDP has record support, and we will not disturb it on review.

B. Jury Instruction on HDP Escape

Defendant further argues that the trial court erred in refusing to instruct the jury on the HDP escape provision because it directly related to his mens rea. We disagree.

A defendant is entitled to a jury instruction on his or her theory of the case if the record contains any evidence to support the theory and it is not embodied in other instructions. The trial court has an affirmative obligation either to correct the tendered theory of the case instruction or to incorporate the substance of the tendered instruction into the final jury instructions. People v. Nunez, 841 P.2d 261, 264-66 (Colo.1992). However, a trial court may refuse to give a defendant's theory of the case instruction that misstates the law, is argumentative, or improperly emphasizes specific evidence. People v. Inman, 950 P.2d 640, 645 (Colo.App.1997).

Appellate courts consider the jury instructions as a whole when determining whether the jury has been adequately informed of the defendant's theory of the case. The court also considers whether defense counsel's closing statement fairly represented the defendant's theory to the jury. People v. Dore, 997 P.2d 1214, 1222 (Colo.App.1999).

Here, defendant proceeded to trial pro se, and one of his tendered jury instructions quoted the HDP escape statute, § 17-27.8-106, and stated that it was "a statute binding in this state." The trial court refused the instruction, concluding that only the felony escape statute and the ISP escape statute were applicable. The court determined that the HDP escape statute did not apply, except to support defendant's belief that his trip to Las Vegas would constitute only a parole violation.

Accordingly, the trial court instructed the jury that defendant believed he had only violated a parole provision and thus had not knowingly escaped from custody or confinement. The trial court also instructed the jury on the affirmative defense of mistake of fact, based on defendant's belief that he was not in "custody or confinement."

Further, defendant testified at trial and argued in closing that he believed he was only committing a parole violation and this belief was based on his understanding of the HDP escape statute.

Thus, we conclude the trial court adequately instructed the jury as to defendant's theory of the case. See People v. Nunez, supra; People v. Dore, supra; People v. Inman, supra.

Accordingly, we find no error.

II. Right to Counsel

Defendant next contends the trial court erred in concluding he waived his Sixth Amendment right to counsel. Again, we disagree.

A defendant has a constitutional right to counsel. U.S. Const. amend. VI; Colo. Const. art. II, § 16.

However, a defendant may waive the right to counsel expressly or impliedly. The waiver must be voluntarily, knowingly, and intelligently made by the defendant based on the cireumstances of each case. The burden is on the prosecution to establish a valid waiver. "[The court should indulge every reasonable presumption against finding a waiver. Any doubts should be resolved in favor of the defendant." People v. Campbell, 58 P.3d 1148, 1155 (Colo.App.2002).

"A trial court's determination that a defendant waived the constitutional right to counsel will be upheld if the record affirmatively establishes that the defendant knowingly and intelligently waived that right." People v. Arguello, 772 P.2d 87, 93 (Colo.1989). To determine the validity of a waiver, appellate courts examine the on-the-record advisement given a defendant and the totality of the cireumstances in the record as a whole. People v. Mossmann, 17 P.3d 165, 170 (Colo.App.2000).

A waiver of the right to counsel presents a mixed question of law and fact that we review de novo. People v. Stanley, 56 P.3d 1241, 1244 (Colo.App.2002).

Once a defendant objects to his or her court-appointed counsel, the trial court must inquire into the reason for the dissatisfaction. If a defendant establishes good cause, such as a conflict of interest or a breakdown in communication, the court must appoint new counsel. The court must verify the defendant has "some well founded reason for believing that the appointed attorney cannot or will not completely represent him" before a change of counsel is warranted. People v. Arguello, supra, 772 P.2d at 94 (quoting 2 W. LaFave & J. Israel, Criminal Procedure 37 (1984)).

If the court determines a substitution of counsel is not warranted, it may insist the defendant choose between continuing with present counsel and proceeding pro se. Before proceeding pro se, a defendant must be given a "clear choice" between existing counsel and waiver of counsel. A defendant who refuses without good cause to proceed with able counsel has effected a "yoluntary" waiver. People v. Arguello, supra.

In Arguello, the supreme court suggested a specific colloquy to be conducted between the trial court and a defendant to ensure a voluntary, knowing, and intelligent waiver of the right to counsel and set forth a proposed colloquy in the appendix for guidance. Nonetheless, the absence of the specific colloquy does not automatically result in an invalid waiver. People v. Arguello, supra, 772 P.2d at 96.

As the Arguello court held, in rare cireum-stances, a defendant's waiver of the right to counsel may be valid without use of the proposed colloquy, but in that event, a reviewing court must consider the advisement and the totality of the cireumstances in the record as a whole. People v. Smith, 881 P.2d 385, 388 (Colo.App.1994). "However, before a reviewing court can find a valid implied waiver based on conduct, there must be ample, unequivocal evidence in the record that the defendant was advised properly in advance of the consequences of his actions." People v. Arguello, supra, 772 P.2d at 97.

In People v. Garcia, supra, a defendant on mandatory parole in ISP disagreed with his court-appointed attorney about whether to assert the defense that the escape statute did not apply to him as a mandatory parolee. Relying on Arguello, a division of this court concluded that the conflict between the defendant and the public defender's office was a disagreement over strategy and was not a sufficient ground for defendant to believe that his court-appointed attorney could not or would not completely represent him. The division further concluded that the trial court sufficiently advised the defendant of the dangers and disadvantages of self-representation. People v. Garcia, supra, 64 P.3d at -, 2002 WL 58926.

Here, defendant, acting pro se, twice sought to remove his court-appointed attorney. Defendant filed a motion to dismiss the public defender's office as counsel and requested the court to appoint a new attorney. At a hearing on the motion, defendant asserted that he disagreed with counsel over the application of law to his case and that counsel had incorrectly advised him that he could receive an aggravated sentence. In response, defense counsel stated that he had "thoroughly researched" defendant's legal issue and no conflict prevented continued representation.

The trial court advised defendant that the court would determine what law applied and that any sentence could be aggravated. Defendant indicated that he understood this. The court further advised defendant that he controlled whether to have a trial, whether to plead guilty, and whether to testify. Defendant was also advised by the trial court that defense counsel controlled trial strategy and that a disagreement over applicable law was not grounds to dismiss counsel.

However, the trial court cautioned defendant that "[Rleading statutes is not as easy as you think they are. The mere fact that something says something on paper [sic] there's a question as to how it applies and whether or not in fact it does or doesn't apply in a case." The court advised defendant that defense counsel was a "competent trial attorney" who had been in court "probably more times" than defendant had, and he should listen to counsel's advice. At this hearing, therefore, the trial court cautioned defendant about the perils of self representation. At the conclusion of the hearing, defendant agreed to work with counsel.

Defendant then filed an amended motion to dismiss his court-appointed attorney and requested appointment of new counsel. At a subsequent hearing, defense counsel advised the court that defendant wanted to proceed pro se and have advisory counsel appointed. Defendant told the court, "I feel right now, at this point in time, I probably know more about these issues in these books, about these certain cases, because it depends on my life, than anybody in Colorado." This statement, together with the trial court's warning at the previous hearing, support the trial court's conclusion that defendant waived his right to counsel.

When the trial court asked defendant whether he wanted to represent himself, he stated, "If I have to-yes, I would, and I would[.]' The court further stated, "[Defense counsel] has indicated that you want the assistance of advisory counsel?" to which the defendant replied, "Yes, I would." The court found that defendant was "alert [and] intelligent," and that "you understand your right to be represented or to represent yourself in trial." The trial court also appointed advisory counsel for defendant, who appeared with him at all subsequent hearings and the jury trial.

Defendant does not suggest that he was unaware of the charges against him or his right to counsel. In his amended motion to dismiss his court-appointed attorney, defendant argued that he had a right to effective representation. The record reflects that defendant objected to testimony, cross-examined both witnesses against him, subpoenaed the Department of Corrections director of parole and community service as his witness, objected to proposed jury instructions tendered by the prosecution, and tendered proposed jury instructions on his own behalf. This indicates defendant had a "broad understanding of the whole matter." See Arguello, supra.

Therefore, while it would have been better practice to give defendant a complete Arguello advisement at one hearing, we conclude that, under the totality of the cireamstances here, the trial court did not err in finding that defendant voluntarily, knowingly, and intelligently waived his right to counsel. See People v. Smith, supra.

III. Jury Instructions

Defendant also argues the trial court erred in instructing the jury to convict him of escape if the prosecution proved that he "failed to remain within the extended limits on his confinement." Defendant asserts that language applies to a crime not charged in this case and that the instruction thus constituted a constructive amendment of the information. We are not persuaded.

A constructive amendment "changes an essential element of the charged offense and thereby alters the substance of the charging instrument." People v. Rodriguez, 914 P.2d 230, 257 (Colo.1996). "Technical defects in an information do not require reversal unless the substantial rights of the defendant are prejudiced. The defendant is entitled to reversal if he was prejudiced, surprised, or hampered in his defense." People v. Rodriguez, supra, 914 P.2d at 259 (quoting People v. Albo, 195 Colo. 102, 106, 575 P.2d 427, 429 (1978)).

In People v. Jefferson, 934 P.2d 870 (Colo.App.1996), a division of this court held that the information was constructively amended when the jury was given an alternative charge permitting it to find the defendant guilty if he intentionally inflicted serious bodily injury, where the information alleged that the defendant committed the offense by attempting to cause bodily injury by means of a deadly weapon.

In contrast, in People v. Jones, 967 P.2d 166 (Colo.App.1997), another division of this court held that a jury instruction giving dates for prior convictions different from those alleged in the information was not a constructive amendment when the information sufficiently apprised the defendant of the charges against him, even though the dates of the prior convictions were incorrect, See People v. Foster, 971 P.2d 1082 (Colo.App.1998) instruction on crime of robbery did not constitute a constructive amendment of the charging document where the jury instruction contained the phrase "of another" instead of the victim's name).

Here, the information charged defendant with escape pursuant to § 18-8-208 and alleged that on January 1, 1999:

[defendant], while in custody and confinement at Department of Corrections-Intensive Supervision Program following a conviction for First Degree Assault and Attempted Escape, did unlawfully, knowingly and feloniously escape from said custody and confinement;
contrary to the form of the statute in such case made and provided, and against the peace and dignity of the People of the State of Colorado.

The trial court instructed the jury on the elements of escape pursuant to § 18-8-208(2) and also, over defendant's objection, defined custody based on the ISP escape statute: means if the defendant fails to remain within the extended limits on his confinement as established by the Intensive Supervision Program...." We note that while this definition actually describes escape from custody, both parties treat the definition as defining "custody," and we will do the same.

Defendant contends that this instruction defining "custody" broadened the charge and violated his constitutional rights to notice and to be tried only on the charges brought. We disagree.

On the contrary, the information specifically alleged that defendant escaped while in ISP, and it was undisputed at trial that defendant left Colorado and went to Nevada. Thus, the information sufficiently advised defendant of the nature of the charge, and he was able to defend against it by arguing that he was a parolee serving in a home detention program and that his trip to Nevada constituted a parole violation. See People v. Taylor, 74 P.3d 396, 2002 WL 31834448 (Colo.App. No. 01CA0716, Dec. 19, 2002)(informa-tion reciting elements of escape under § 18-8-208 was sufficient, prosecution not required to cite legal definition of escape under ISP statute, and jury was given instruction with that definition). Defendant was neither surprised nor hampered in his defense.

Thus, we find no reversible error. See People v. Taylor, supra.

IV. Nature of Defendant's Prior Convictions

Defendant next contends the trial court erred when it allowed the prosecution to introduce evidence of the nature of his prior convictions over his objection. Specifically, he argues that while the felony status of his prior convictions was admissible, identifying those felonies was unfairly prejudicial because one of his prior offenses was attempted escape. We conclude that any error in this regard was harmless.

A trial court's erroneous eviden-tiary ruling is not grounds for reversal where the error is harmless. Salcedo v. People, 999 P.2d 833, 841 (Colo.2000). "A constitutional error is harmless when the evidence properly received is so overwhelming that such error was harmless beyond a reasonable doubt." People v. Perry, 68 P.3d 472, 476, 2002 WL 220850 (Colo.App. No. 98CA2122, Feb. 14, 2002). An error may be harmless where a defendant admits facts that make the improper evidence cumulative. See People v. Alexis, 806 P.2d 929, 932 (Colo.1991)(where defendant admitted stealing stereo, introduction of stereo allegedly seized improperly was harmless).

Here, even if we assume that admitting evidence of the nature of defendant's prior convictions was error under Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), we conclude the error was harmless beyond a reasonable doubt because of the overwhelming evidence of defendant's guilt, including his own testimony. Indeed, defendant testified that "I already had an escape in '91. So I knew all about all of these escape statutes. I knew about all of the administrative regulations. I knew about it since '91 because I went through it before." During his testimony, defendant also admitted voluntarily leaving for Nevada after he had been placed on ISP.

V, Absence of Limiting Instruction

Finally, defendant contends the trial court committed plain error when it instructed the jury to consider his prior convictions as substantive evidence of his guilt and placed no limitations on the jury's use of the evidence. Onee again, we disagree.

When no contemporaneous objection is made to an asserted error, appellate review is limited to determining whether there is plain error. Plain error "casts serious doubt upon the basic fairness of the trial itself." Wilson v. People, 743 P.2d 415, 419-20 (Colo.1987).

Here, defendant did not object to the lack of a limiting instruction, nor did he request one. During the jury instruction conference, he stated, "I don't want, I don't think there's any need for any reference to my priors in the instructions."

The trial court included an instruction that stated, "You may consider convictions that are an element of the charge of Escape as substantive evidence as well as for the eredi-bility of the witness."

Given our conclusion that admitting evidence of the nature of defendant's prior convictions was harmless beyond a reasonable doubt, we similarly conclude that the lack of a limiting instruction does not constitute plain error.

In light of our disposition of this issue, we need not address the People's argument that any error in not giving a limiting instructions was invited by defendant.

The judgment is affirmed.

Judge ROTHENBERG and Judge WEBB concur.