People v. Welborne , 2018 COA 127 ( 2018 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
September 6, 2018
2018COA127
No. 14CA2242 People v. Welborne — Crimes — First Degree
Arson — Criminal Mischief; Criminal Law — Prosecution of
Multiple Counts for Same Act — Lesser Included Offenses
On remand from the Colorado Supreme Court, a division of
the Colorado Court of Appeals considers whether criminal mischief
is an included offense of first degree arson. In light of the supreme
court’s recent decisions in People v. Rock, 2017 CO 84, and Page v.
People, 2017 CO 88, the division concludes that criminal mischief is
included in first degree arson where both offenses are based on the
same conduct. Therefore, the division vacates the defendant’s
conviction and sentence for criminal mischief.
COLORADO COURT OF APPEALS 2018COA127
Court of Appeals No. 14CA2242
Larimer County District Court No. 13CR1167
Honorable Julie Kunce Field, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Christopher Wesley Welborne,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART, VACATED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division V
Opinion by JUDGE NAVARRO
Hawthorne and Dunn, JJ., concur
Announced September 6, 2018
Cynthia H. Coffman, Attorney General, Brock J. Swanson, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Nicole M. Mooney, Alternate Defense Counsel, Denver, Colorado, for Defendant-
Appellant
¶1 Defendant, Christopher Wesley Welborne, appeals the
judgment of conviction entered on jury verdicts finding him guilty of
first degree arson, criminal mischief, theft, and attempted theft. We
previously rejected his challenges to his convictions in People v.
Welborne, 2017 COA 105, cert. granted in part, judgment vacated,
and case remanded, No. 17SC671 (Colo. June 11, 2018)
(unpublished order). Among other holdings, we concluded that
criminal mischief is not an included offense of first degree arson.
Id. at ¶¶ 50-61. We relied on the Colorado Supreme Court’s ruling
in Reyna-Abarca v. People, 2017 CO 15. After our decision,
however, the supreme court clarified Reyna-Abarca in People v.
Rock, 2017 CO 84, and Page v. People, 2017 CO 88. The supreme
court, without opinion, then vacated our judgment as to the
included-offense issue and remanded it to us for reconsideration in
light of Rock and Page.
¶2 Upon that reconsideration, we hold that Welborne’s criminal
mischief conviction is an included offense of his first degree arson
conviction because they are based on the same conduct. Therefore,
we vacate the criminal mischief conviction and sentence, remand
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for the trial court to amend the mittimus accordingly, and otherwise
affirm the judgment.1
I. Factual and Procedural History
¶3 Because our earlier opinion details the facts and proceedings
leading to Welborne’s convictions, we will not recite them all. See
Welborne, ¶¶ 2-14. Suffice it to say that the prosecution charged
Welborne and his mother with setting fire to their rented house and
then filing false insurance claims based on the fire damage.
¶4 The jury convicted him as charged. Both the first degree
arson and the criminal mischief convictions were based on his (or
his mother’s) setting fire to the house. Both were class 3 felonies
given the amount of damage. The trial court sentenced Welborne to
concurrent prison terms for the arson, criminal mischief, theft, and
attempted theft.
II. Is Criminal Mischief Included in First Degree Arson?
¶5 Welborne contends that criminal mischief is an included
offense of first degree arson and, therefore, those convictions must
1 The Colorado Supreme Court denied Welborne’s petition for writ of
certiorari as to all other issues. So, all our other holdings in People
v. Welborne, 2017 COA 105, remain good law and resolve his other
appellate contentions.
2
merge under both statutory and double jeopardy dictates. He finds
support in People v. Abeyta, 541 P.2d 333 (Colo. App. 1975) (not
published pursuant to C.A.R. 35(f)). The Abeyta division held that
first degree arson includes criminal mischief “because the essential
elements of the latter are necessarily proven if the elements of the
first are present.” Id. at 335.
¶6 The People concede that Abeyta was correct at the time it was
decided. But the People argue that the supreme court’s decisions
announced after Welborne’s trial — namely, Reyna-Abarca, Rock,
and Page — changed the landscape and require the opposite
conclusion. We disagree. The decisions in Rock and Page confirm
that Abeyta was right all along.
A. Standard of Review
¶7 We review de novo a claim that a conviction violates the
constitutional prohibition against double jeopardy. People v.
McMinn, 2013 COA 94, ¶ 18. Because Welborne did not preserve
this issue, we may reverse only if plain error occurred.
Reyna-Abarca, ¶ 2; People v. Morales, 2014 COA 129, ¶¶ 46-47.
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B. Analysis
1. General Principles
¶8 Constitutional double jeopardy protections preclude imposing
multiple punishments for the same offense when the General
Assembly has not conferred specific authorization for multiple
punishments. Page, ¶ 8. The legislature has determined that, if
one offense is included in another offense, a defendant may not be
convicted of both. § 18-1-408(1)(a), C.R.S. 2017. As pertinent here,
one offense is included in another offense charged when “[i]t is
established by proof of the same or less than all the facts required
to establish the commission of the offense charged.” § 18-1-
408(5)(a); Reyna-Abarca, ¶ 51. This statute requires a “statutory
elements” or “strict elements” test, under which we compare the
elements of the statutes rather than the specific evidence used to
sustain the charges in a particular case. Reyna-Abarca, ¶ 53.
¶9 Under the supreme court’s formulation of the statutory
elements test in Reyna-Abarca, ¶ 64, “an offense is a lesser
included offense of another offense if the elements of the lesser
offense are a subset of the elements of the greater offense, such that
the lesser offense contains only elements that are also included in
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the elements of the greater offense.” The Reyna-Abarca court
recognized, however, that “one offense is not a lesser included
offense of another if the lesser offense requires an element not
required for the greater offense.” Id. at ¶ 60 (discussing Schmuck v.
United States, 489 U.S. 705 (1989), from which the Reyna-Abarca
court fashioned its new test).
¶ 10 In addition, the supreme court in Reyna-Abarca, ¶¶ 65-67,
disavowed Meads v. People, 78 P.3d 290 (Colo. 2003), which had
applied the following test: if proof of facts establishing the statutory
elements of the greater offense necessarily establishes all the
elements of the lesser offense, the lesser offense is included. See
Reyna-Abarca, ¶ 65. Seemingly eschewing the analysis of Meads,
the Reyna-Abarca court explained that “the result in Meads would
have been different” under its “clarified version of the strict
elements test” (i.e., the subset analysis). Id. at ¶ 67; see also Page,
¶ 10 (“Although the greater offenses in Reyna-Abarca . . . could be
established by means that would not necessarily establish
commission of the lesser offense . . . , we concluded that the lesser
offense was included in, and therefore merged into, the greater
offenses because the elements of the lesser offense are a subset of
5
the elements of the greater offenses.”). We applied Reyna-Abarca in
our earlier decision. Welborne, ¶¶ 57-61.
¶ 11 Shortly thereafter, however, the supreme court revisited the
test set forth in Reyna-Abarca and revealed a significant “corollary”
to its subset analysis: “[I]f establishing the elements of the greater
offense necessarily establishes the elements of the lesser, then the
lesser offense is included in the greater.” Page, ¶ 11 (citing Rock,
¶ 16). The supreme court also disapproved of its reasoning in
Zubiate v. People, 2017 CO 17, which had been announced
simultaneously with Reyna-Abarca and applied Reyna-Abarca.
Rock, ¶ 16 n.4; see People v. Wambolt, 2018 COA 88, ¶¶ 58-63
(concluding that Zubiate is no longer good law in light of Rock). The
upshot of the supreme court’s decisions in Rock and Page is that
there are two ways in which an offense may be included in another
under section 18-1-408(5)(a) and the double jeopardy clause.
¶ 12 First, “a lesser offense is included in the greater offense when
there are multiple ways to commit the greater and proof of the
commission of at least one of which necessarily proves commission
of the lesser.” Page, ¶ 10. Second, “[a]n offense can also be
included in another under the statutory elements test when there
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are multiple ways to commit the lesser, not all of which are
included within the greater.” Id. at ¶ 11. “[A]ny set of elements
sufficient for commission of that lesser offense that is necessarily
established by establishing the statutory elements of a greater
offense constitutes an included offense.” Rock, ¶ 16.
2. Offenses At Issue
¶ 13 As charged here, first degree arson requires proof that the
defendant (1) knowingly; (2) set fire to, burned, or caused to be
burned; (3) any building or occupied structure; (4) of another;
(5) without that person’s consent. § 18-4-102(1), C.R.S. 2017.
¶ 14 As charged here, criminal mischief requires proof that the
defendant (1) knowingly; (2) damaged; (3) the real or personal
property; (4) of one or more other persons, including property
owned by the defendant jointly with another person or property
owned by the defendant in which another person had a possessory
or proprietary interest; (5) in the course of a single criminal episode.
§ 18-4-501(1), C.R.S. 2017; § 18-4-501(1), C.R.S. 2012.2
2 The 2017 statute differs somewhat from the 2012 version in effect
at the time of Welborne’s offenses, but not as to the elements set
forth above. The 2017 version restructures and revises the
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3. Applying Rock and Page
¶ 15 Criminal mischief can be committed in multiple ways, not all
of which are included in first degree arson. For instance, if a
defendant knowingly damages another person’s car, the defendant
commits criminal mischief but the conduct does not support the
first degree arson offense. When a defendant knowingly burns
another person’s building or occupied structure without that
person’s consent, however, the defendant commits both criminal
mischief and first degree arson.
¶ 16 In the latter scenario, criminal mischief is included in first
degree arson. On this point, Rock is particularly illuminating.
There, the supreme court held that, when the charges are based on
the same conduct, second degree trespass is a lesser included
offense of second degree burglary. See Rock, ¶¶ 17-20. The court
explained that a person can commit trespass in multiple ways —
only one of which involves unlawfully entering another’s building or
occupied structure, a requirement of burglary. Still, the court held
that trespass was included in burglary in that case because both
aggregate damage amounts relevant to enhancing criminal mischief
from a misdemeanor to a felony. See § 18-4-501(4), C.R.S. 2017.
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offenses were based upon the defendant’s unlawfully entering
another’s building or occupied structure. Id. at ¶¶ 4, 20. Under
parallel analysis, criminal mischief involving damage to another’s
building or occupied structure is included in first degree arson
involving burning the same building or occupied structure.
¶ 17 The People think not, however. In response to our order for
supplemental briefs addressing Rock and Page, the People point out
that the criminal mischief statute requires all the acts to occur “in
the course of a single criminal episode.” § 18-4-501(1), C.R.S.
2017. Because the first degree arson statute does not express this
“single criminal episode” element, the People maintain that criminal
mischief requires an element that first degree arson does not.
Under this theory, then, mischief would not be included in first
degree arson. See Page, ¶ 13; Reyna-Abarca, ¶ 60. The People’s
position reflects our previous analysis of the issue. See Welborne,
¶ 59.3 The supreme court vacated our decision, however, and
ordered us to reconsider it in light of Rock and Page. Looking to
3 We explained that “[b]ecause we must apply the strict elements
test . . . , we are loath to look beyond the elements expressed in the
first degree arson statute by theorizing that a ‘single criminal
episode’ element is necessarily implicit in the first degree arson
offense.” Welborne, ¶ 59 n.5.
9
those cases, we see that Page lights the path to a different
conclusion.
¶ 18 In Page, ¶¶ 15-19, the court held that establishing sexual
assault by means of penetration necessarily establishes unlawful
sexual contact. The court first noted that the sexual assault statute
does not explicitly require that the defendant knew the victim did
not consent, unlike the unlawful sexual contact statute. Id. at ¶ 17.
Yet, the court decided that, because the sexual assault offense
requires proof that the defendant caused the victim’s submission,
the sexual assault offense “[b]y its very nature” requires the
defendant’s knowledge that the victim did not consent. Id.
(emphasis added). “Therefore, although the unlawful sexual contact
statute expressly requires a showing of nonconsent whereas the
sexual assault statute does not, the two offenses are legally
indistinguishable regarding consent.” Id.
¶ 19 Additionally, the Page court found insignificant that “[t]he
unlawful sexual contact statute expressly requires that the
defendant act with a sexual purpose while the sexual assault by
means of penetration statute does not.” Id. at ¶ 18. The court
decided that “[l]ogically, sexual penetration as defined by statute
10
cannot be committed without a sexual purpose.” Id. Because the
acts constituting penetration pursuant to the statute “inherently
have a sexual purpose,” the court resolved that “it would be
redundant for the General Assembly to expressly require such a
purpose.” Id. (emphasis added).
¶ 20 Applying this approach, we conclude that first degree arson,
by its very nature, occurs in a single criminal episode — an element
of criminal mischief. “Single criminal episode” means essentially
the same thing as “same criminal episode.” People v. Thoro Prods.
Co., 45 P.3d 737, 745 (Colo. App. 2001), aff’d, 70 P.3d 1188 (Colo.
2003). Such an episode includes “acts that are committed
simultaneously or close in sequence, occur in the same place or
closely related places, and form part of a schematic whole.” Id.
“Acts arising from the same criminal episode include offenses
arising from the same conduct of the defendant or offenses
connected in such a manner that prosecution of the offenses
involves substantially interrelated proof.” Id.
¶ 21 The People have not identified any set of facts, nor can we
conceive of any, in which a single first degree arson would not take
place in a single criminal episode. So, the single criminal episode
11
requirement is inherent in the elements of the first degree arson
statute. Regarding the single criminal episode requirement, first
degree arson and criminal mischief are legally indistinguishable.4
As a result, establishing the elements of first degree arson
necessarily establishes the elements of criminal mischief.
¶ 22 Given all this, where, as here, criminal mischief is founded on
the same conduct showing first degree arson, criminal mischief is
included in first degree arson. The failure to merge Welborne’s
criminal mischief conviction into his first degree arson conviction
was error. See Page, ¶¶ 9, 19. We now consider whether it was
plain error. See People v. Rediger, 2018 CO 32, ¶ 48 (identifying
elements of plain error).
¶ 23 In Reyna-Abarca, ¶¶ 81-82, the supreme court opined that,
when a defendant’s double jeopardy rights are violated for failure to
merge a lesser included offense into a greater offense, the error
typically constitutes plain error requiring a remedy. Because the
4 The purpose of expressing the single criminal episode requirement
in the criminal mischief statute appears to be to define the period
over which the amount of the damage caused may be aggregated;
that amount sets the felony or misdemeanor level. § 18-4-501(4).
There is no need to express this requirement in the first degree
arson statute because the offense is always a class 3 felony.
12
People there “presented no compelling arguments as to why any
double jeopardy errors that may have been committed . . . did not
rise to the level of plain error,” the court concluded that the
conviction for the included offense could not stand. Id. at ¶¶ 82-83.
¶ 24 In contrast, in Scott v. People, 2017 CO 16, ¶¶ 14-18 —
announced the same day as Reyna-Abarca — the supreme court
concluded that the failure to merge the putative lesser included
offense into the greater offense was not plain error. Unlike in
Reyna-Abarca, the court in Scott discerned a compelling reason why
the double jeopardy claim did not show plain error: a division of
this court had previously rejected the defendant’s precise claim in a
decision announced before his trial. See Scott, ¶ 18. The Scott
court explained, “[W]e cannot say that it was obvious error for the
trial court to have acted consistently with that [earlier court of
appeals] case.” Id.; see also Wambolt, ¶¶ 55-56, 70-71 (holding that
the failure to merge the lesser included offense into the greater
offense was not obvious error, and thus not plain error, because at
the time of trial there were conflicting appellate decisions on the
issue).
13
¶ 25 This case resembles Reyna-Abarca because the People have
not presented compelling reasons why the double jeopardy violation
here was not plain error. No appellate decision announced at the
time of Welborne’s trial had rejected the double jeopardy claim he
raises on appeal. Following Reyna-Abarca, therefore, we conclude
that the failure to merge the convictions was plain error.
III. Conclusion
¶ 26 Welborne’s criminal mischief conviction and sentence are
vacated. The judgment is affirmed in all other respects. We
remand for the trial court to amend the mittimus accordingly.
JUDGE HAWTHORNE and JUDGE DUNN concur.
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