     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
                                                                  May 7, 2020

                                2020COA78

No. 18CA0528, People v. Sims — Crimes — Eluding or
Attempting to Elude a Police Officer — Aggravated Driving
After Revocation Prohibited; Criminal Law — Prosecution of
Multiple Counts for Same Act — Lesser Included Offenses

     In this challenge to the sufficiency of evidence to sustain a

conviction for eluding or attempting to elude a police officer under

section 42-4-1413, C.R.S. 2019, a division of this court rejects the

defendant’s argument that “eluding” or “attempting to elude”

requires some sort of evasive action that makes it harder for the

police to follow. Rather, depending on the circumstances, elude

may simply be defined as to avoid, escape, or not be caught. The

division also holds that the defendant’s conviction for eluding or

attempting to elude a police officer should merge into his conviction

for aggravated driving after revocation prohibited.
COLORADO COURT OF APPEALS                                          2020COA78


Court of Appeals No. 18CA0528
Larimer County District Court No. 14CR1014
Honorable Stephen E. Howard, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Dustin Robert Sims,

Defendant-Appellant.


             JUDGMENT AFFIRMED IN PART, VACATED IN PART,
                AND CASE REMANDED WITH DIRECTIONS

                                 Division III
                          Opinion by JUDGE VOGT*
                        Dunn and Johnson, JJ., concur

                            Announced May 7, 2020


Philip J. Weiser, Attorney General, Danny Rheiner, Assistant Attorney General
Fellow, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Rachel K. Mercer, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2019.
¶1    In 2014, a jury convicted defendant, Dustin Robert Sims, of

 eluding or attempting to elude a police officer, aggravated driving

 after revocation prohibited (aggravated DARP), and two lesser

 offenses. On direct appeal, a division of this court concluded that

 police officers had given improper opinion testimony at trial about

 whether Sims’s conduct amounted to “eluding,” which was an

 ultimate issue to be decided by the jury. The division reversed in

 part and remanded for a new trial on the charges of eluding or

 attempting to elude and aggravated DARP. See People v. Sims,

 (Colo. App. No. 15CA0475, June 15, 2017) (not published pursuant

 to C.A.R. 35(e)).

¶2    At the second trial, Sims was again found guilty on those

 counts, and he now appeals. Sims first contends that the evidence

 was insufficient to sustain his conviction for eluding or attempting

 to elude a police officer (without that conviction, his DARP

 conviction would not be aggravated). Second, he contends that his

 eluding or attempting to elude conviction should have been merged

 into his conviction for aggravated DARP.




                                   1
¶3    We disagree with his first contention but agree with the

 second. We therefore affirm the judgment in part, vacate it in part,

 and remand for further proceedings.

                           I.   Background

¶4    The evidence at the second trial in this case showed the

 following.

¶5    Sims was told to leave a rodeo in Estes Park, Colorado, when

 he became irate and belligerent following an unfounded allegation

 about a theft of a cowboy hat. Sims then drove to a local police

 station to lodge a complaint against the police officer who had been

 involved in the incident at the rodeo. When the station was initially

 unable to provide Sims with a complaint form, he became frustrated

 and left. He described his mental state upon leaving the station as

 “enraged.”

¶6    Meanwhile, the officer involved in the rodeo incident had been

 dispatched to bring a complaint packet to the station for Sims to fill

 out. The officer had learned through a records check after the

 incident that Sims’s driving status had been revoked as a habitual

 traffic offender. When the officer was driving into the station




                                   2
 parking lot, he observed Sims backing out of a parking space, and

 he saw that one brake light on Sims’s car was out.

¶7    The officer, driving a marked patrol vehicle, tried to initiate a

 traffic stop of Sims’s car by activating the vehicle’s emergency

 lights. Sims did not pull over but continued driving, within the

 speed limit. The officer then sounded his siren, using three

 different siren tones, but Sims still did not respond. Another officer

 joined the pursuit, also activating his emergency lights and sirens,

 and other drivers pulled their cars off to let the officers pass. Sims

 kept driving, all the while within the speed limit. After pursuing

 Sims for just over three miles, the officers discontinued the pursuit

 at the city limits based on the local police department’s policy.

¶8    A sergeant with the county sheriff’s department heard about

 the pursuit over dispatch. After the local officers stopped their

 pursuit and asked the sheriff’s department for help, the sergeant

 began pursuing and eventually caught up to Sims’s car

 two-and-a-half miles down the road. He activated his emergency

 lights and sounded different sirens, including a very loud air horn.

 Sims kept driving, within the speed limit. During the sergeant’s

 pursuit, he noticed Sims smoking a cigarette and flicking the ashes


                                    3
  out the window. After pursuing Sims’s car for two miles, the

  sergeant conducted a precision immobilization technique maneuver,

  causing Sims’s car to spin off the road. Sims was arrested at the

  scene.

¶9         Sims testified that he was driving with loud music on and with

  an earbud in one ear and that he did not hear or see any police cars

  behind him.

¶ 10       The jury found Sims guilty on both counts.

     II.   Sufficiency of the Evidence of Eluding or Attempting to Elude

¶ 11       Sims contends that the evidence was insufficient to sustain

  his conviction for eluding or attempting to elude a police officer

  because eluding or attempting to elude requires some type of “trick”

  or “evasive action” that makes it harder for the police to follow. He

  cites the following as possible examples: increasing one’s speed,

  turning off one’s headlights, swerving around other cars, or ducking

  onto a side road. He argues that “the prosecution has to show that

  a person did something more than simply refuse to stop,” and that

  because “he just continued to drive normally, and he followed all

  applicable traffic regulations while doing so,” the evidence was

  insufficient to sustain his conviction. We disagree.


                                       4
                         A.   Standard of Review

¶ 12   When assessing the sufficiency of the evidence supporting a

  conviction, we review the record de novo to determine whether the

  relevant evidence, viewed as a whole and in the light most favorable

  to the prosecution, was sufficient to support the conclusion by a

  reasonable juror that the defendant was guilty beyond a reasonable

  doubt. Butler v. People, 2019 CO 87, ¶ 20.

¶ 13   We review issues of statutory construction de novo. Garcia v.

  People, 2019 CO 64, ¶ 33.

        B.    Law Criminalizing Eluding or Attempting to Elude

¶ 14   The General Assembly has defined the crime of eluding or

  attempting to elude a police officer as follows:

             Any operator of a motor vehicle who the officer
             has reasonable grounds to believe has violated
             a state law or municipal ordinance, who has
             received a visual or audible signal such as a
             red light or a siren from a police officer driving
             a marked vehicle showing the same to be an
             official police, sheriff, or Colorado state patrol
             car directing the operator to bring the
             operator’s vehicle to a stop, and who willfully
             increases his or her speed or extinguishes his or
             her lights in an attempt to elude such police
             officer, or willfully attempts in any other
             manner to elude the police officer, or does elude
             such police officer commits [the] class 2



                                     5
             misdemeanor traffic offense [of eluding or
             attempting to elude a police officer].

  § 42-4-1413, C.R.S. 2019 (emphasis added).

¶ 15   The evidence required to establish eluding or attempting to

  elude under section 42-4-1413 has been addressed in two

  published Colorado cases, neither of which involves the same

  circumstances as those presented here.

¶ 16   In People v. Espinoza, 195 P.3d 1122, 1125 (Colo. App. 2008),

  after a police officer activated his emergency lights and siren to

  conduct a traffic stop of the defendant’s car, the defendant drove

  slowly for four blocks and then fled on foot. In concluding that the

  evidence of eluding or attempting to elude was sufficient, the

  division relied primarily on the defendant’s attempted flight on foot.

  See id. at 1128-29.

¶ 17   In People v. Procasky, 2019 COA 181, ¶¶ 3-5, 18-25, after

  officers activated their lights and sirens to conduct a traffic stop of

  the defendant’s car, the defendant drove for two blocks, pulled into

  a parking lot, stopped his car, and followed the officers’ directions

  thereafter. Finding Espinoza distinguishable because that case

  focused on the defendant’s flight on foot, the Procasky division



                                     6
  concluded that the evidence of eluding or attempting to elude was

  insufficient. See id. at ¶¶ 18-25.

                     C.      What Does “Elude” Mean?

¶ 18   The word “elude” is not defined in the relevant statutory

  scheme, nor is it defined in the Colorado Model Criminal Jury

  Instructions. The jury in this case was not provided with a

  definition for the word.

                       1.     Dictionary Definitions

¶ 19   When jury instructions do not provide a definition for a

  particular term, the jury is presumed to apply the common meaning

  or meanings of the term. People v. Walden, 224 P.3d 369, 379

  (Colo. App. 2009). Although jurors are of course not permitted to

  consult a dictionary for such information, see People v. Holt, 266

  P.3d 442, 446-47 (Colo. App. 2011) (juror improperly brought a

  dictionary definition of “elude” or “eluding” into jury room), we may

  do so to determine how a reasonable juror might construe the

  meaning of a term, see Cowen v. People, 2018 CO 96, ¶ 14 (“When

  determining the plain and ordinary meaning of words, we may

  consider a definition in a recognized dictionary.”).




                                       7
¶ 20    In this case, however, dictionary definitions do not provide a

  definitive answer. On the one hand, some definitions support

  Sims’s contention that eluding requires proof that the defendant

  took some kind of evasive action. Both Webster’s Ninth New

  Collegiate Dictionary 405 (1990) and the online Merriam-Webster

  Dictionary, https://perma.cc/GP67-7ZYZ, define “elude” as “to

  avoid adroitly.” The term “adroitly,” in turn, is defined as using

  “skill, cleverness, or resourcefulness.” Merriam-Webster Dictionary,

  https://perma.cc/5UQF-9GB7. See also The American Heritage

  Dictionary of the English Language 582 (4th ed. 2000) (defining

  “elude” as “to evade or escape from, as by daring, cleverness, or

  skill”).

¶ 21    On the other hand, some definitions of elude do not require

  evasive action. See Cambridge Dictionary, https://perma.cc/47AL-

  5DNH (defining “elude” as simply “to not be caught by someone”);

  see also Collins English Dictionary, https://perma.cc/XJ6A-YJL4

  (“If you elude someone or something, you avoid them or escape from

  them.”); Macmillan Dictionary, https://perma.cc/N3AF-YE49

  (defining elude as “to manage to escape or hide from someone or

  something”).


                                     8
¶ 22   Relying on dictionary definitions, then, does not show that a

  reasonable juror would necessarily think that some kind of evasive

  action is required before “eluding or attempting to elude” can be

  found.

                 2.    The Principle of Ejusdem Generis

¶ 23   Nor do we agree with Sims that such evasive action is required

  if we construe the relevant statute according to the principle of

  ejusdem generis. Under that principle of statutory construction,

  “when a general word or phrase [in a statute] follows a list of

  specific persons or things, the general word or phrase will be

  interpreted to include only persons or things of the same type as

  those listed.” Davidson v. Sandstrom, 83 P.3d 648, 656 (Colo. 2004)

  (quoting Black’s Law Dictionary 535 (7th ed. 1999)).

¶ 24   Applying that principle to section 42-4-1413, Sims argues,

  means that because the statute’s specific examples of attempting to

  elude — increasing one’s speed and extinguishing one’s lights —

  involve tricks or evasive actions, the general clause that follows —

  “attempts in any other manner to elude” — must be interpreted to

  include only tricks or evasive actions. We disagree.




                                    9
¶ 25   As the division in Espinoza explained, the “phrase ‘in any

  other manner’ [in the last clause of section 42-4-1413] is broad and

  clarifies that an operator violates the statute regardless of how the

  operator attempts to elude the police.” 195 P.3d at 1129; see also,

  e.g., Gooch v. United States, 297 U.S. 124, 128 (1936) (relying in

  part on statute’s use of the broad term “otherwise” in declining to

  apply ejusdem generis principle to construction of federal

  kidnapping statute).

¶ 26   Applying ejusdem generis here would, instead, narrow the

  construction of the phrase “in any other manner,” and would

  narrow the reach of section 42-4-1413. When we consider that

  statute as part of the broader statutory scheme addressing similar

  behavior, we discern nothing to suggest that the General Assembly

  intended such a narrow construction. See S.A.S. v. Dist. Court, 623

  P.2d 58, 62 n.5 (Colo. 1981) (The principle of ejusdem generis

  “should not be applied in a manner that hinders the attainment of

  the objectives contemplated by the statutory scheme.”).

¶ 27   A different statute, section 18-9-116.5, C.R.S. 2019, addresses

  “vehicular eluding,” which is a felony. Conviction of that felony

  requires proof that the driver “operate[d] his or her vehicle in a


                                    10
  reckless manner.” § 18-9-116.5(1). Section 18-9-116.5 thus would

  not apply in a situation where, as here, the driver was not driving

  recklessly.

¶ 28   Another statute, section 42-4-705(1), C.R.S. 2019, addresses

  failing to yield the right-of-way to an emergency vehicle:

                Upon the immediate approach of an authorized
                emergency vehicle making use of audible or
                visual signals . . ., the driver of every other
                vehicle shall yield the right-of-way and where
                possible shall immediately clear the farthest
                left-hand lane lawfully available to through
                traffic and shall drive to a position parallel to,
                and as close as possible to, the right-hand
                edge or curb of a roadway clear of any
                intersection and shall stop and remain in that
                position until the authorized emergency vehicle
                has passed, except when otherwise directed by
                a police officer.

  (Emphasis added.) A person who violates this statute commits a

  class A traffic infraction, § 42-4-705(3)(a), and must pay a penalty

  of between $15 and $100, § 42-4-1701(3)(a)(I), C.R.S. 2019.

¶ 29   Although Sims was in fact found guilty at his first trial of

  violating section 42-4-705(1) as a lesser nonincluded offense related

  to the eluding charge, it does not follow that this statute was

  intended to afford the only remedy available for the type of conduct

  at issue in this case. By its plain language, section 42-4-705(1) is


                                       11
  intended to address drivers who fail to yield the right of way so that

  emergency vehicles can pass easily to get to an emergency, not

  drivers who themselves are being pursued by police officers.

¶ 30   Considering the related statutes, sections 42‑4‑705(1)

  and 18-9-116.5, leads us to agree with the Espinoza division that

  the clause in section 42‑4‑1413, “attempts in any other manner to

  elude,” must be construed broadly. Otherwise, someone who

  required police to pursue him for miles, albeit without driving

  recklessly, would be guilty only of failing to yield the right-of-way to

  an emergency vehicle — a result which we view as inconsistent with

  the legislative intent evidenced in the statutory scheme described

  above.

¶ 31   We also note that courts in other jurisdictions have, under

  different statutory schemes, recognized that driving some distance

  to avoid being pulled over can amount to eluding police even if no

  traffic laws are being broken. See State v. Donkers, 867 N.E.2d

  903, 925 (Ohio Ct. App. 2007) (Even where elude is construed to

  mean “slyly avoid[] with artifice, stratagem, or dexterity,” “one could

  come up with various theories to support appellant’s intent to

  elude. For instance, one could believe that she was trying to leave

                                     12
  the jurisdiction and was hoping the trooper could not follow.”); see

  also People v. Sanchez, 103 Cal. Rptr. 2d 809, 814 (Ct. App. 2001)

  (“[A]s can be attested to by those who watched the ludicrous pursuit

  of Orenthal James Simpson in his white Bronco, a driver can flee or

  otherwise attempt to elude pursuing officers in a manner that does

  not pose a high probability of death to anyone.”); State v. James,

  237 P.3d 672, 679-80 (Mont. 2010) (Rice, J., concurring in part and

  dissenting in part) (“O.J.’s quixotic quest had not been done

  recklessly and had not endangered but, nonetheless, he had

  exhibited the criminal objective of eluding police.”).

                       3.    The Meaning of Elude

¶ 32   In sum, we do not agree with Sims that “elude” must

  invariably include some kind of trick or evasive action. Rather,

  depending on the circumstances, elude may simply be defined as

  “avoid,” “escape,” or “to not be caught.” This does not mean that

  any time a person does not immediately stop when a police car

  directs him or her to do so, the person is guilty of violating section

  42-4-1413. The statute also requires that the driver be found to

  have acted “willfully.” Where, for example, a driver continues

  driving for miles without pulling over, despite being pursued by


                                     13
  police with activated lights and sirens, a reasonable jury could

  conclude that he or she was willfully attempting to elude the police

  officer. Conversely, as in Procasky, pulling over after a short

  distance and then cooperating with police could be insufficient to

  establish a violation of section 42-2-1413.

¶ 33   Finally, we do not agree with Sims that a construction that

  permits the jury to consider factors such as the length of time or

  distance driven renders the statute unconstitutionally vague.

  Contending that we must designate a specific distance to avoid

  vagueness, Sims asks: “If driving for two blocks is not enough, then

  what is?” In our view, it is not necessary to decide, as a matter of

  law, how far a driver can drive before violating the statute. Each

  case will involve differing facts, and we are confident that

  reasonable jurors will be able to decide, based on all the evidence,

  whether the prosecution has shown beyond a reasonable doubt that

  the defendant’s conduct amounted to willfully eluding or attempting

  to elude a police officer.

                               D.   Application

¶ 34   The jury in the second trial heard evidence that the first

  pursuing officer knew that Sims’s driver’s license had been revoked,


                                     14
  and Sims also was aware of that fact; the officers, and the sergeant

  with the county sheriff’s department, pursued Sims in marked

  vehicles, sounded sirens, and activated their emergency lights; Sims

  had his car window open at least long enough to flick a cigarette;

  and Sims drove over three miles, leaving the police officers’

  jurisdiction, and then continued driving for some two miles after the

  sergeant caught up with him.

¶ 35   This evidence, considered under the standards set forth above,

  was sufficient to support a conclusion by a reasonable juror that

  Sims was guilty beyond a reasonable doubt of willfully eluding or

  attempting to elude a police officer under section 42-4-1413. The

  fact that he did not violate any traffic laws while driving does not

  require a contrary conclusion.

                   III.   Double Jeopardy and Merger

¶ 36   Sims also contends that his conviction for eluding or

  attempting to elude a police officer is a lesser included offense, and

  therefore should merge into his conviction for aggravated DARP.

  We agree.

¶ 37   Whether convictions for different offenses merge is a question

  of law that we review de novo. Page v. People, 2017 CO 88, ¶ 6.


                                    15
  Because Sims did not request this relief in the trial court, we review

  for plain error. See Reyna-Abarca v. People, 2017 CO 15, ¶¶ 34-47.

  However, in this context, “when a defendant’s double jeopardy

  rights are violated for failure to merge a lesser included offense into

  a greater offense, such a violation requires a remedy.” Friend v.

  People, 2018 CO 90, ¶ 45 (quoting Reyna-Abarca, ¶ 81).

¶ 38   When a defendant’s conduct establishes the commission of

  more than one offense, the defendant may be prosecuted for each

  such offense, but he or she may not be convicted of more than one

  offense if “[o]ne offense is included in the other,” that is, if the lesser

  offense “is established by proof of the same or less than all the facts

  required to establish” the greater offense. § 18-1-408(1)(a), (5)(a),

  C.R.S. 2019. In other words, “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 the

  elements of the greater offense.” Friend, ¶ 34 (quoting

  Reyna-Abarca, ¶ 64).

¶ 39   The aggravated DARP statute, section 42-2-206(1)(b)(I), C.R.S.

  2019, states:


                                      16
            A person commits the crime of aggravated
            [DARP] if he or she is found to be an habitual
            offender and thereafter operates a motor
            vehicle in this state while the revocation of the
            department prohibiting such operation is in
            effect and, as a part of the same criminal
            episode, also commits any of the following
            offenses:

            ....

            (C) Reckless driving . . .;

            (D) Eluding or attempting to elude a police
            officer . . .;

            . . .; or

            (F) Vehicular eluding . . . .

  (Emphasis added.)

¶ 40   The italicized clause above — “and, as a part of the same

  criminal episode, also commits any of the following offenses” —

  means that the offenses listed in the subsections under section

  42-2-206(1)(b), including eluding or attempting to elude under

  subsection (D), are lesser included offenses of aggravated DARP.

  See Espinoza, 195 P.3d at 1130 (“Defendant contends, the People

  concede, and we agree, that [defendant’s] conviction for eluding

  must be vacated because it merges with his conviction for

  aggravated DARP.”); see also People v. Dutton, 2014 COA 51,



                                     17
  ¶¶ 27-36 (concluding that reckless driving under subsection (C) and

  vehicular eluding under subsection (F) are lesser included offenses

  of aggravated DARP, but merging only the reckless driving

  conviction into the aggravated DARP conviction in order to uphold

  as many sentences as legally possible); cf. Zubiate v. People, 2017

  CO 17, ¶¶ 17-21 (under the strict elements test, driving under

  restraint — which is not listed in any subsection under section

  42-2-206(1)(b) — is not a lesser included offense of aggravated

  DARP), disapproved of by People v. Rock, 2017 CO 84, ¶ 16 n.4.

¶ 41   Consistent with the legal principles set forth above, the jury

  instruction on aggravated DARP in Sims’s case set forth the

  elements the jury was required to find, including that, “(7) as part of

  the same criminal episode, [Sims] committed the following crime:

  Eluding or Attempting to Elude a Police Officer.” However, as

  noted, although the jury convicted Sims of aggravated DARP and

  eluding or attempting to elude a police officer, the two offenses were

  not merged at sentencing.

¶ 42   Citing People v. Dominguez, 2019 COA 78, ¶ 63, the People

  argue that merger is not required because Sims committed two

  separate and temporally distinct instances of eluding or attempting


                                    18
  to elude: one in attempting to elude the local police officers, the

  other in attempting to elude the sergeant during the last two miles

  of the pursuit. We are not persuaded.

¶ 43   In Dominguez, a division of this court recognized that multiple

  convictions for two separate offenses, the elements of one of which

  constitute a subset of the elements of the other, can stand if the

  offenses were committed by distinctly different conduct. Id. The

  Dominguez division held that the defendant’s reckless driving and

  vehicular eluding convictions did not merge where the evidence

  presented supported two factually and temporally distinct instances

  of reckless driving. Id. at ¶¶ 66-71; see also People v. McMinn, 2013

  COA 94, ¶¶ 8, 31-35 (prosecution charged defendant with, and tried

  him on, four counts of vehicular eluding, one for each pursuing

  officer; merger was not required where each act was “a new

  volitional departure” in the defendant’s course of conduct, not

  merely a single, continuous, uninterrupted act of eluding).

¶ 44   In contrast to Dominguez and McMinn, the prosecution

  charged Sims with a single count of eluding or attempting to elude

  and, in that charge, presented evidence of Sims’s single, continuing,

  and uninterrupted act of eluding or attempting to elude. The same


                                    19
  is true for the aggravated DARP charge — the prosecution did not

  specify any particular act of eluding or attempting to elude

  underlying that charge. Consistent with the charges, during closing

  argument at trial, the prosecutor argued to the jury that Sims had

  committed one continuous act of eluding:

             7.8 miles. That was the distance that Mr.
             Sims eluded police. . . . [O]ne could debate,
             what is that distance at which failure to yield
             becomes eluding. I don’t know if that distance
             is 100 feet or half a mile, or maybe even a mile.
             But I’m asking you to determine that it
             certainly is 7.8 miles, that when you fail to
             stop for police for 7.8 miles, the only
             reasonable conclusion is that you’re
             attempting to elude police. And that’s what
             happened here.

  The prosecutor then addressed the aggravated DARP charge, saying

  to the jury, “if you consider or deliberate over the eluding count and

  you make the determination that he did not elude police, you

  cannot find that he committed aggravated driving while revoked as

  [a] habitual traffic offender.”

¶ 45   Under these circumstances, we are unpersuaded by the

  People’s arguments on this issue. See Friend, ¶ 23 (“[T]he

  information did not allege specific facts supporting each of these

  individual counts. Moreover, although before us the People have


                                    20
  attempted to assign specific facts to particular counts, the

  prosecution did not try the case that way.”); People v. Abiodun, 111

  P.3d 462, 471 (Colo. 2005) (To charge multiple counts of the same

  offense, the prosecution must charge them “with sufficient

  specificity to distinguish” them.).

¶ 46   Eluding or attempting to elude a police officer is a lesser

  included offense of aggravated DARP, and the fact that Sims has

  convictions for both offenses “requires a remedy.” See Friend, ¶ 45

  (quoting Reyna-Abarca, ¶ 81).

                             IV.   Conclusion

¶ 47   Sims’s conviction for aggravated DARP is affirmed. Sims’s

  conviction for eluding or attempting to elude a police officer is

  vacated. We remand for the trial court to merge Sims’s conviction

  for eluding or attempting to elude a police officer into his conviction

  for aggravated DARP.

       JUDGE DUNN and JUDGE JOHNSON concur.




                                        21
