2018 COA 68
Colo. Ct. App.2018Background
- Wagner and his wife separated in May 2014; she moved in with another man. Over several months Wagner repeatedly called, texted, followed, and surveilled the victim and her boyfriend.
- After their divorce in September 2014 the victim reported Wagner’s conduct to her supervisor; Wagner was arrested.
- Wagner was charged with three counts of stalking under Colo. Rev. Stat. § 18-3-602(1): one count under (a) (credible threat + repeated following/approach/contact/surveillance), one under (b) (credible threat + repeated communications), and one under (c) (repeated conduct causing serious emotional distress).
- A jury convicted Wagner on all three counts; he received consecutive jail terms and concurrent probation terms.
- On appeal the People conceded that the two credible-threat counts should merge; the court asked supplemental briefing whether all three counts should merge.
- The court concluded the three convictions arose from one factually inseparable course of conduct, vacated two convictions, and remanded to correct the mittimus; all other issues were rejected and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether multiple stalking convictions under § 18-3-602(1)(a),(b),(c) are multiplicitous | Two credible-threat counts should merge; but the serious-emotional-distress count can stand separate because factually distinct incidents exist | All three convictions arise from a single continuous course of conduct and therefore must merge | The statute sets out alternative means of a single offense; Wagner’s three convictions were multiplicitous and two must be vacated |
| Sufficiency of evidence for stalking (credible threat and serious emotional distress) | Evidence (threatening statements, slide of gun, knowledge of victim’s address, persistent contact) supported convictions | Evidence insufficient to prove credible threat or objective/subjective serious emotional distress | Evidence was sufficient to support at least one stalking conviction (jury could find credible threats and serious emotional distress) |
| Whether trial court erred in refusing a unanimity instruction or requiring prosecutorial election | Prosecutor argued the acts constituted one continuous course; no election necessary | Defense requested unanimity/election because multiple acts could constitute the offenses | No error: evidence showed repeated acts against a single victim such that jurors likely agreed all occurred (no reasonable likelihood of juror disagreement) |
| Remedy for multiplicitous convictions | People initially conceded two counts should merge; court considered full merger | Defendant sought merger/vacatur of duplicate convictions | Remedy: merge multiplicitous counts (vacate two convictions) and correct mittimus |
Key Cases Cited
- Woellhaf v. People, 105 P.3d 209 (Colo. 2005) (double jeopardy prohibits multiple punishments for same conduct and guides unit-of-prosecution analysis)
- Quintano v. People, 105 P.3d 585 (Colo. 2005) (factors for determining whether conduct constitutes factually distinct offenses)
- People v. Herron, 251 P.3d 1190 (Colo. App. 2010) (stalking statute defines alternative means of a single offense; merger where course-of-conduct unit applies)
- People v. Abiodun, 111 P.3d 462 (Colo. 2005) (when legislature lists disjunctive acts in one provision it often defines alternative means of a single offense)
- People v. Carey, 198 P.3d 1223 (Colo. App. 2008) (evidence-sufficiency and instruction principles in stalking context)