The People of the State of Colorado v. Michael William Wade
No. 21CA1581
COLORADO COURT OF APPEALS
February 15, 2024
2024COA13
JUDGE TAUBMAN*, Pawar and Graham*, JJ., concur
Garfield County District Court No. 17CR368 Honorable James B. Boyd, Judge
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
February 15, 2024
2024COA13
No. 21CA1581, People v. Wade — Crimes — Harassment — Assault in the Second Degree — Assault in the Third Degree — Child Abuse; Criminal Law — Prosecution of Multiple Counts for Same Act — Lesser Included Offenses
A division of the court of appeals considers whether harassment, as defined in
Applying the tests for lesser included offenses articulated in
The division further rejects the defendant’s contention that the district court erred by not sua sponte instructing the jury оn self-defense, and it affirms the judgment of conviction.
Plaintiff-Appellee,
v.
Michael William Wade,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division III
Opinion by JUDGE TAUBMAN*
Pawar and Graham*, JJ., concur
Announced February 15, 2024
Philip J. Weiser, Attorney General, Emmy A. Langley, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Kira L. Suyeishi, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of
I. Background
¶ 2 According to the prosecution’s evidence, Wade engaged in the conduct underlying his convictions over several hours one night in the family’s apartment. First, while alone in their bedroom, Wade repeatedly made the bed, then made A.C. sit on the bed and “forced” her legs into a certain position, and then made her get up so he could remake the bed. During this time, Wade punched A.C. in her shoulder and her back. At one point, he put a pillow over A.C.’s face, sat on her chest, and placed two hands around her neck, obstructing her breathing. Wade continued to intermittently
¶ 3 When ten-year-old D.W. eventually entered the bedroom, screaming, “Please leave my mom alone,” Wade pulled him into the room by his ear, threw him across the room, and then picked him up and shoved him into a chair. Wade threatened to shoot D.W. and H.W. with a BB gun.
¶ 4 Twelve-year-old H.W. was recording the sound of these events on her phone when Wade came into her bedroom and attempted to take the phone away. Wade slapped H.W.’s face, pushing her cheek into her braces. Then he warned H.W. that she “doesn’t know what a real hit feels like,” grabbed her wrist and ankle, and pulled her off the bed.
¶ 5 At least once during the night, A.C. armеd herself with a steak knife to defend herself and the children. When Wade returned A.C.’s phone, at about 3 a.m., she called 911.
II. Self-Defense Instruction
¶ 7 Wade contends that the court erred by failing to sua sponte instruct the jury on the affirmative defense of self-defense, based on evidence presented by prosecution witness Officer Travis Westсott, the first officer on the scene. We reject this contention.
A. Additional Background
¶ 8 Officer Westcott testified as follows:
[Wade] said that him and his wife had gotten into an argument over the living conditions of the family, and that she had taken a knife with her to bed. He woke up and she had the knife, and she choked him, and things escalated.
He took off his shirt to show me where he had — she had stabbed him. I didn’t see anything that was noticeably consistent with that.
B. Applicable Law and Standard of Review
¶ 10 “Trial courts have a duty to instruct the jury on all matters of law applicable to the case.” Roberts v. People, 2017 CO 76, ¶ 18, 399 P.3d 702, 704-05. “We review jury instructions de novo to determine whether the instructions accurately informed the jury of the governing law.” Id. at ¶ 18, 399 P.3d at 705.
¶ 12 Because Wade did not request a self-defense instruction at trial or object to the instructions given, reversal is not warranted in the absence of plain error. See People v. Martinez, 2022 COA 111, ¶ 32, 522 P.3d 725, 731 (cert. granted in part July 17, 2023). We will reverse a conviction for plain error in the jury instructions only when (1) an error occurred; (2) the error was obvious; and (3) the defendant demonstrates “not only that the instruction[s] affected a substantial right, but also that the record rеveals a reasonable
C. Analysis
¶ 13 To the extent Officer Westcott’s testimony supports a self-defense instruction, it would be applicable only to the offenses perpetrated against A.C. As best we understand Wade’s closing argument, his theory of defense for the alleged crimes against A.C. was a general denial.
¶ 14 Our review of the record reveals only tenuous support for Wade’s claim that he acted in self-defense against A.C. Officer Westcott testified that his investigation uncovered no evidence to support Wade’s claims that he had been choked and stabbed. Further, no exhibits presented at trial supported those claims.
¶ 15 A.C.’s testimony provided only a modicum of support. She testified that she put her hands on Wade’s neck that night, but she explained thаt she “was trying to fight back to be able to breathe” — she “was trying to push him back . . . [s]o that he would let go.” This testimony was corroborated by statements A.C. made to a defense witness shortly after the event. A.C. admitted that she had
¶ 16 In light of this unfavorable evidence, the lack of a self-defense argument, and Wade’s tender of only one of two endorsed affirmative defense instructions, the record does not plainly suggest that a self-defense instruction was warranted. Further, it appears to us that defense counsel made a tactical decision not to submit a self-defense instruction. When the defense makes a tactical decision not to submit an alternative defense instruction, a trial court’s failure to sua sponte offer the instruction does not constitute еrror, much less plain error. See People v. Close, 867 P.2d 82, 90-91 (Colo. App. 1993) (concluding that there was no error in failing to give an affirmative defense instruction where the asserted defense was a partial denial and defense counsel made only passing reference to the affirmative defense in opening
¶ 17 Even if we assume that the district court erred in not giving a self-defense instruction, we conclude that any error was neither obvious nor likely to contribute to Wade’s convictions because the defense appeared to abandon any assertion of self-defense and the evidence supporting thе defense was thin.
¶ 18 We therefore conclude that the district court did not err, plainly or otherwise, by failing to sua sponte instruct the jury on self-defense.
III. Double Jeopardy
¶ 19 Next, Wade contends that some of his convictions should have merged as lesser included offenses based on identical conduct. We disagree.
¶ 20 The parties agree that Wade did not preserve this contention in the district cоurt, and thus we review for plain error. We will reverse if any error in not merging convictions is obvious and substantial, Hagos v. People, 2012 CO 63, ¶ 14, 288 P.3d 116, 120, and so undermined the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction, People v. Price, 2023 COA 96, ¶ 32, ___ P.3d ___. We also review Wade’s double jeopardy claims de novo. People v. Lowe, 2020 COA 116, ¶ 38, 486 P.3d 397, 408.
B. Lesser Included Offenses and Merger
¶ 21 Wade argues that several of his convictions are lesser included offenses under both the strict elements test in
¶ 22 Under the strict elements test, an offense is a lesser included offense of another “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 the elements of the greater offense.” Reyna-Abarca v. People, 2017 CO 15, ¶ 64, 390 P.3d 816, 826.
¶ 23 Under the broader test provided in
¶ 24 A lesser included offense merges into a greater offense when both offenses are based on the defendant’s same conduct against the same victim. See
¶ 25 We address Wade’s merger contentions regarding his crimes against A.C. before turning to those concerning H.W.
C. Harassment and Assaults of A.C.
¶ 26 Wade first contends that his harassment of A.C. conviction must merge into his conviction for either second or third degree assault of A.C. We disagree.
1. The Convictions
¶ 27 The charging document, the jury instructions, and the verdict form are all silent as to which of Wаde’s actions formed the basis of his harassment conviction. But in closing argument, the prosecution asserted that Wade’s conduct in “moving [A.C.] off of the bed, telling her to get back on the bed, making the bed, [and] unmaking the bed” established harassment. Harassment, under
¶ 28 Wade’s second degree assault conviction is based on evidence that he strangled A.C. Second degree assault – strangulation occurs when a person applies sufficient pressure to impede or restrict breathing or blood circulation, by applying pressure to the neck or by blocking the other person’s nose or mouth, and thereby causes bodily injury, with the intent to cause bodily injury.
¶ 29 Wade’s third degree assault conviction is based on evidence that he punched A.C. in her shoulder and her back. Third degree assault occurs when a person either (1) knowingly or recklessly causes bodily injury to another person; or (2) with criminal negligence, causes bodily injury to another person by means of a deаdly weapon.
2. No Merger Required
¶ 30 First, we conclude that under the strict elements test, harassment is not a lesser included offense of either second or third
¶ 31 Next, we consider whether harassment is a lesser included offense of second or third degree assault under the
¶ 32 Harassment and third degree assault pose a slightly more difficult question. We conclude they do not merge because although third degree assault requires a lesser kind of culpability than harassment, it requires a more serious risk of injury. Harassment may be established with nothing more than “touch” or “contact,”
¶ 33 Because we conclude that none of Wade’s offenses against A.C. is a lesser included offense, we need not inquire into whether the offenses are factually distinct to conclude that the offenses do not merge. See People v. Whiteaker, 2022 COA 84, ¶¶ 18-19, 519 P.3d 1127, 1132 (cert. granted in part Apr. 17, 2023).
¶ 34 Next, Wаde asserts that his child abuse and harassment of H.W. convictions must merge into his conviction for third degree assault. Again, we disagree.
1. The Convictions
¶ 35 Like with A.C., the charging document, the jury instructions, and the verdict form do not indicate which of Wade’s actions underlie his harassment conviction. The elements of the conviction are the same as those listed in Part III.C.1.
¶ 36 Wade’s third degree assault conviction is bаsed on evidence that he slapped H.W. in the face. The elements of that conviction also mirror those in Part III.C.1.
¶ 37 Wade’s child abuse conviction is based on evidence that he grabbed H.W. by the ankle and wrist and pulled her off the bed. Child abuse, as relevant to Wade’s conviction, occurs when a person acts knowingly or recklessly and that person’s actions2
2. No Merger Required
¶ 38 Like with A.C., and for the same reasons discussed in Part III.C.2, harassment is not a lesser included offense of third degree assault. Those convictions do not merge under the strict elements test or the test in
¶ 39 As charged, the elements of third degree assault are includеd in the elements of child abuse. The culpable mental state is identical — knowingly or recklessly. And the “bodily injury” element of third degree assault,
¶ 40 But here, there were two acts: (1) slapping H.W. in the face and (2) grabbing her wrist and аnkle and pulling her off the bed. Although “determining precisely when conduct supporting one commission of a particular offense is factually distinct from conduct supporting another commission of the same offense is not always so clear,” Schneider v. People, 2016 CO 70, ¶ 14, 382 P.3d 835, 839 (emphasis added), here, there are two separate offenses and two separate acts. Multiple convictions fоr two separate offenses — one a lesser included of the other — “can clearly stand if the offenses were committed by distinctly different conduct,” as they were here. Rock, ¶ 17, 402 P.3d at 478.
IV. Disposition
¶ 42 The judgment is affirmed.
JUDGE PAWAR and JUDGE GRAHAM concur.