Opinion by
Dеfendant, James Edwin Lowry, appeals the trial court order denying his Crim. P. 35 motion to vacate his conviction. We affirm.
I. Background
Defendant was tried by a jury on charges of sexual assault on a child by one in a position of trust (class 8 felony, pattern of abuse), attempted sexual assault on a child by one in a position of trust (class 4 felony), and a сrime of violence for acts committed on or between September 1, 2002, and July 20, 2008. At the close of the evidence, defendant requested and was granted an instruction on the lesser offense of violation of a protection order (class 2 misdemeanor). The jury acquitted defendant of the felony assault charges but conviсted him of violation of a protection order.
He then filed a Crim. P. 85 motion to vacate the misdemeanor conviction, contending the eighteen-month statute оf limitations applicable - to - misdemeanors, § 16-5-401(1)(a), C.R.S.2006, had expired before he was convicted of that offense and therefore, the trial court lacked jurisdiсtion to enter judgment on that verdict.
The trial court denied the motion, conelud-ing the statute of limitations did not apply. The court relied upon $ 16-5-401(12), C.R.S. 2006, which states, in pertinent рart:
The applicable period of limitations specified in subsection (1) of this section shall not apply to charges of offenses or delinquent acts brought to facilitate the disposition of a case, or to lesser included or non-included charges of offenses or delinquent acts given to the court or a jury at a trial on the merits, by the accused.
II. Lesser Non-included Offense
Defendant contends that the trial court erred in denying his motion because the uncharged misdemeanor was not a lesser non-included оffense of the charged offenses but rather, was a separate, new offense which was time barred when it was alleged against him. We disagree.
A. Subject Matter Jurisdiction
Defendant first contеnds that the statute of limitations is jurisdictional and can never be waived. We disagree.
In People v. Verbrugge,
There is a presumption that when a statute is amended, thеre is an intent to the change the law. People v. Hale,
Here, defendant requested and received a lesser offense instruction, and he was convicted of the lesser offense instеad of the original felony charges. See People v. Bielecki,
Accordingly, if defendant's misdemeanor conviction was a lesser non-included offense, we conclude defendant's request for the lesser offense constituted a waiver of the statute of limitations. See State v. Timoteo,
B. "Arise from the Same Facts"
Relying on People v. Skinner,
The division in Skinner reviewed the applicable cases and stated, in dicta, that "a lesser non-includеd offense may be any offense lesser in severity than the original charged offense, provided that such lesser offense arises from the same facts leading to the original charge, and that such lesser offense also contains at least one element not contained in the charged offense." People v. Skinner, suprа,
We agree with Skinner that generally a lesser nonineluded offense will arise from the same facts as the original charged offense. However, neither the text of § 16-5-401(12) nоr supreme court precedent defining the more closely related term of "lesser included offense" requires that both offenses arise from the same facts. See People v. Rivera,
In any event, after Skinner, the legislature specifically created an exception to the statute of limitations where, as here, the defendant has requested a lesser included or lesser non-included offense. - Section 16-5-401(12). We must therefore decide what test is appropriate to determine whether an оffense is lesser included or non-ineluded under this statute.
Section 18-1-408(b)(a), C.R.S.2006, provides that a defendant may be convicted of an included offense 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." To determine whether a defendant is entitled to a lesser inсluded offense instruction, the supreme court has applied a strict elements test that requires the court to compare "the statutes which set forth the constituent elements of each
crime." People v. Rivera, supra,
In Meads v. People,
[T]he strict elements test involves nothing more than placing the relevant statutes next to each other, comparing the language, and determining how closely they match,. If the greater offense includes all of the elements of the lessеr offense plus one or more additional elements, it is fair to say that the lesser offense is included within the greater offense. Conversely, if a comparison of thе two statutes reveals that the lesser offense has substantively different elements than the greater offense, the lesser offense is not included in the greater offense.
Meads v. People, supra,
We therefore conclude the strict elements test should be used to determine whether an offense is lesser included or nonineluded under § 16-5-401(12).
Applying that test here, we conclude that violation of a protection order is a lesser non-included offense of sexual assault on a child by one in a position of trust. The elements of the sexual assault charges are that "[alny actor ... knowingly subjects another not his or her spouse to any sexual contact ... if the victim is a child less than eighteen yеars of age and the actor ... is one in a position of trust with respect to the victim." Section 18-3-405.3(1), C.R.S.2006. However, the elements of violation of a protection оrder are that the defendant has "actual knowledge of the contents of a protection order" and "[elontacts, harasses injures, intimidates, molests, threatеns, or touches" the protected person or "enters or remains on premises or comes within a specified distance of the protected person or premises or violates any other provision of the protective order." Section 18-6-8038.5(1), C.R.S.2006. Thus, the sexual assault charges did not establish all the essential elemеnts of the lesser crime, violation of a protection order.
Because violation of a protection order is a lesser nonineluded offense of thе sexual as
Finally, we note that a lеsser nonin-cluded offense instruction is tantamount to a defendant's theory of the case instruction. See People v. Skimmer, supra,
The order is affirmed.