2018 COA 127
Colo. Ct. App.2018Background
- Defendant Christopher Welborne was convicted by a jury of first-degree arson, criminal mischief, theft, and attempted theft for setting fire to his rented house and related conduct.
- Both the arson and criminal mischief convictions were predicated on the same burning of the house; both were charged as class 3 felonies based on damage amount.
- The Court of Appeals initially held that criminal mischief was not a lesser included offense of first-degree arson, relying on Reyna-Abarca and prior precedent, and rejected Welborne’s double jeopardy/merger claim.
- The Colorado Supreme Court later clarified the included-offense test in People v. Rock and Page v. People and remanded the included-offense question to the Court of Appeals for reconsideration.
- On remand, the Court of Appeals concluded that where both offenses are based on the same conduct (burning an occupied structure), criminal mischief is a lesser included offense of first-degree arson and vacated the criminal mischief conviction and sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether criminal mischief is a lesser included offense of first-degree arson | People argued criminal mischief contains an element ("single criminal episode") not expressed in the arson statute, so it is not included | Welborne argued criminal mischief is included in arson because the elements overlap when both are based on the same burning conduct | Where both offenses are based on the same conduct (burning another’s building), criminal mischief is a lesser included offense of first-degree arson; defendant’s criminal mischief conviction and sentence vacated |
| Whether the alleged failure to merge convictions was plain error | People contended later-case developments altered the law and no plain error exists | Welborne contended merger error was plain and required remedy | Court held the failure to merge was plain error because no controlling appellate precedent at trial foreclosed the claim; remedy required |
Key Cases Cited
- Schmuck v. United States, 489 U.S. 705 (U.S. 1989) (discussed in forming elements/subset analysis approach to included offenses)
- Meads v. People, 78 P.3d 290 (Colo. 2003) (previous test comparing proof of statutory elements; disavowed in Reyna-Abarca)
- People v. Thoro Prods. Co., 45 P.3d 737 (Colo. App. 2001) (definition and scope of "single criminal episode")