     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
                                                                April 16, 2020

                                2020COA68

No. 17CA1399, People v. Gillis — Crimes — First Degree
Burglary — First Degree Criminal Trespass — Assault in the
Third Degree; Criminal Law — Prosecution of Multiple Counts
for Same Act — Lesser Included Offenses

     A division of the court of appeals considers whether first

degree criminal trespass and third degree assault are lesser

included offenses of first degree burglary under the statutory

elements test articulated in Reyna-Abarca v. People, 2017 CO 15,

390 P.3d 816. Given that the elements of first degree criminal

trespass are a subset of the elements of first degree burglary, the

division holds that first degree criminal trespass is a lesser included

offense of first degree burglary. The division vacates the

defendant’s conviction for first degree criminal trespass because it

merges into his conviction for first degree burglary.
     Although third degree assault is a lesser included offense of

first degree burglary when the assault is charged as the predicate

offense for first degree burglary, the division affirms each of the

defendant’s convictions because he assaulted the victim twice.

     The division also holds that the defendant was not denied his

right to counsel and that his appeal of the trial court’s denial of his

right to a preliminary hearing is moot because a jury found him

guilty as charged.
COLORADO COURT OF APPEALS                                          2020COA68


Court of Appeals No. 17CA1399
Adams County District Court No. 15CR2485
Honorable Michael A. Cox, Judge
Honorable Patrick T. Murphy, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Ian Joseph Gillis,

Defendant-Appellant.


                       JUDGMENT AFFIRMED IN PART
                          AND VACATED IN PART

                                 Division VII
                         Opinion by JUDGE LIPINSKY
                         Fox and Berger, JJ., concur

                           Announced April 16, 2020


Philip J. Weiser, Attorney General, Jennifer L. Carty, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Taylor J. Hoy, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Defendant, Ian Joseph Gillis, appeals the judgment of

 conviction entered on jury verdicts finding him guilty of first degree

 burglary, first degree criminal trespass, and third degree assault.

 We affirm Gillis’s convictions for first degree burglary and third

 degree assault, but vacate his conviction for first degree criminal

 trespass. We do not remand for resentencing because the court

 sentenced Gillis to identical concurrent sentences for each offense.

            I.   Background Facts and Procedural History

                     A.   The Underlying Incident

¶2    According to E.G., her boyfriend Gillis demanded that she

 return to her apartment so he could collect belongings he had left

 there. Later that day, E.G. placed Gillis’s belongings outside her

 apartment and locked the door because she was “freaked out” from

 their earlier conversation.

¶3    Shortly thereafter, Gillis attempted to enter E.G.’s apartment,

 but was unable to do so because the door was locked. He kicked in

 the door while E.G. screamed at him to stop from inside her

 apartment.

¶4    Once inside her apartment, Gillis threw E.G. to the floor and

 smothered her face to stop her from screaming. E.G. ran to her


                                    1
 bedroom when Gillis finally got off her. He followed her, threw her

 on her bed, climbed on top of her, and smothered her face with a

 pillow. Eventually, Gillis got off E.G. and told her they would leave

 her apartment together. After E.G. said she would not leave with

 him, Gillis dragged her down the hallway toward the front door,

 causing rug burns on her knees.

¶5    At that point, E.G. convinced Gillis to let her use the

 bathroom. While inside the bathroom, E.G. texted a friend for help.

 Gillis waited outside the bathroom door and began hitting or

 kicking it to force E.G. to leave the bathroom. Fearing he would

 kick down the door, she stepped out of the bathroom. Gillis then

 began to pull E.G. down the hallway to force her to leave with him.

 When she struggled, he slammed her against a wall, causing her to

 hit her head. Gillis next wrapped a towel around E.G.’s neck, used

 it to pull her into the kitchen, and began to choke her with it.

¶6    Shortly thereafter, E.G.’s friend and her friend’s boyfriend

 arrived and yelled at Gillis to leave. Gillis dropped the towel and left

 the apartment. E.G. then left the apartment and called the police.




                                    2
¶7     Based on the information E.G. gave to the police, the

  prosecution charged Gillis with (1) first degree burglary; (2) first

  degree criminal trespass; and (3) second degree assault.

                    B.    Gillis’s Preliminary Hearings

¶8     During Gillis’s advisement on January 21, 2016, he informed

  the court that he planned to hire private counsel. The court set his

  preliminary hearing for March 3, 2016 (the March Preliminary

  Hearing).

¶9     Gillis appeared pro se at the March Preliminary Hearing. He

  told the court that he still intended to hire private counsel, but that

  he needed more time to find the money for a retainer to pay an

  attorney. He requested another continuance. The court said that

  “[w]e’ll set it over one time,” granted his request, and rescheduled

  the preliminary hearing for April 14, 2016 (the April Preliminary

  Hearing).

¶ 10   One day before the April Preliminary Hearing, the prosecution

  requested a continuance because two of its witnesses were

  unavailable. The court did not rule on the prosecution’s request

  that day, however. At the April Preliminary Hearing, the prosecutor

  informed the court that Gillis had recently hired counsel. Gillis did


                                     3
  not object to the prosecutor’s representation. The prosecutor then

  renewed his request for a continuance. The court granted the

  request, rescheduling the hearing for May 5, 2016 (the May

  Preliminary Hearing).

¶ 11   Gillis appeared pro se at the May Preliminary Hearing. He

  requested another continuance so he could apply for representation

  from the public defender’s office. The prosecutor objected to Gillis’s

  request and the court denied the requested continuance. The court

  found that Gillis had waived his right to a preliminary hearing by

  appearing at multiple hearings without counsel. Gillis objected to

  the court’s ruling.

¶ 12   The court instructed Gillis to take his application to the public

  defender’s office. Gillis complied, and a public defender entered her

  appearance as his counsel of record later that day. Gillis’s public

  defender moved for a preliminary hearing, but the record is unclear

  whether the court ever addressed the motion. Gillis did not move

  for a preliminary hearing during any subsequent hearings.

                            C.    Gillis’s Trial

¶ 13   Because Gillis’s assault on E.G. occurred over time and

  because he inflicted distinct injuries on her during the different


                                     4
  stages of the assault, the prosecutor argued that Gillis had

  assaulted E.G. twice. For this reason, the prosecutor charged him

  separately with first degree burglary, based on the predicate offense

  of assault, and second degree assault. Gillis did not object at trial

  to the prosecutor’s decision to treat his actions as constituting two

  assaults.

¶ 14   A jury convicted Gillis of (1) first degree burglary, based on the

  predicate offense of third degree assault; (2) first degree criminal

  trespass; and (3) third degree assault. The court sentenced him to

  four years’ probation on each conviction, to be served concurrently,

  with the condition that he participate in, and abide by the rules and

  regulations of, a veteran’s court program.

                             II.   Discussion

¶ 15   Gillis raises two contentions of error. First, he contends that

  the court erred by finding that he impliedly waived his right to

  counsel and subsequently waived his right to a preliminary hearing.

  Second, he asserts that the court erred by failing to merge his

  convictions for first degree criminal trespass and third degree

  assault into his conviction for first degree burglary. We agree that

  Gillis’s conviction for first degree criminal trespass merges into his


                                     5
  conviction for first degree burglary but disagree with his remaining

  arguments.

   A.    The Trial Court Found Only that Gillis Waived His Right to a
                            Preliminary Hearing

¶ 16    The parties disagree how we should analyze Gillis’s first

  contention of error. Contending that the court violated his right to

  counsel, Gillis asserts that the court erred in finding that he

  impliedly waived his right to counsel by requesting multiple

  continuances of his preliminary hearing and appearing without

  counsel at any of the rescheduled hearings. Gillis argues that this

  finding impaired his ability to construct, prepare, and present a

  defense at trial.

¶ 17    According to the People, however, the court found that Gillis’s

  actions resulted in a waiver of his right to a preliminary hearing,

  rather than a waiver of his right to counsel. The People assert that

  the trial court did not hold that Gillis waived his right to counsel,

  particularly as it instructed him to apply to the public defender’s

  office to obtain counsel.

¶ 18    Based on the record, we agree with the People that the court

  did not deprive Gillis of his right to counsel. Gillis appeared pro se



                                     6
  at the March Preliminary Hearing, the April Preliminary Hearing,

  and the May Preliminary Hearing only because he failed to retain

  private counsel after informing the court of his intention to do so.

  At the May Preliminary Hearing, he first disclosed that he planned

  to ask the public defender’s office to represent him. After stating

  that Gillis was “playing games,” the court found that he had waived

  his right to a preliminary hearing. It did not find that he waived his

  right to counsel. Instead, the court asked Gillis why he had not

  retained private counsel, rejected his argument that he lacked

  sufficient funds to hire a lawyer because he qualified for a public

  defender, and instructed him to take his application “over to the

  Public Defender’s Office right now” because “[t]hat way you’ll have

  an attorney.” Gillis then submitted his application to the public

  defender’s office. A public defender entered her appearance as his

  counsel of record and represented him throughout the case.

¶ 19   Thus, Gillis was not deprived of his right to counsel. We next

  consider his contention that the court erred in denying him the

  right to a preliminary hearing.




                                    7
       B.    Gillis’s Contention that the Court Denied him a Preliminary
                                    Hearing Is Moot

                               1.   Legal Authority

¶ 20        Section 16-5-301(1)(a), C.R.S. 2019, provides that “[e]very

  person accused of a class 1, 2, or 3 felony . . . has the right to

  demand and receive a preliminary hearing . . . .” See Crim. P.

  5(a)(4). First degree burglary is a class 3 felony. § 18-4-202(2),

  C.R.S. 2019. Second degree assault is a class 3 felony if the victim

  “suffered serious bodily injury during the commission” of a

  burglary. § 18-3-203(2)(b.5), C.R.S. 2019.

¶ 21        “The purpose of a preliminary hearing is to ‘screen out cases

  in which prosecution is unwarranted by allowing an impartial judge

  to determine whether there is probable cause to believe that the

  crime charged may have been committed by the defendant.’” People

  v. Nichelson, 219 P.3d 1064, 1066-67 (Colo. 2009) (quoting Rex v.

  Sullivan, 194 Colo. 568, 571, 575 P.2d 408, 410 (1978)).

¶ 22        But the right to a preliminary hearing is not absolute. People

  v. Moody, 630 P.2d 74, 76 (Colo. 1981); see Crim. P. 5(a)(4)(I)

  (providing that the defendant or prosecution must request a




                                        8
  preliminary hearing within seven days of the defendant being

  brought before the county court).

¶ 23   A defendant who seeks appellate review of a court’s denial of

  his or her request for a preliminary hearing must do so before trial

  because, if the defendant is convicted at trial, the alleged error in

  denying the preliminary hearing becomes moot. Nichelson, 219

  P.3d at 1067; see Kuypers v. Dist. Court, 188 Colo. 332, 335, 534

  P.2d 1204, 1206 (1975) (“Resolution of [probable cause] questions

  must be made prior to trial in order to avoid the anomalous

  situation where a defendant may be found guilty at trial, and then

  attempt to have the conviction reversed for a preliminary hearing on

  probable cause.”). The proper procedure for seeking such review is

  a C.A.R. 21 petition to the supreme court. Nichelson, 219 P.3d at

  1066-67; Kuypers, 188 Colo. at 335, 534 P.2d at 1206.

                              2.    Analysis

¶ 24   We do not reach the merits of Gillis’s contention that the court

  denied his right to a preliminary hearing because we conclude the

  issue is moot. Although Gillis repeatedly requested a preliminary

  hearing and objected to the court’s finding that he had waived his

  right to one, he did not seek relief under Rule 21 before his case


                                      9
  proceeded to trial. Thus, he failed to pursue the only remedy

  available to him. See Nichelson, 219 P.3d at 1066-67. It is too late

  for him to challenge whether there was probable cause to support

  the first degree burglary charge after a jury found beyond a

  reasonable doubt that he committed the offense. Nor can he

  challenge whether there was probable cause to support the second

  degree assault charge because a jury found beyond a reasonable

  doubt that he also committed the lesser included charge of third

  degree assault. See id.; Kuypers, 188 Colo. at 335, 534 P.2d at

  1206; see also Blue v. United States, 342 F.2d 894, 901 (D.C. Cir.

  1964) (“Where, as here, the accused has been found guilty of those

  charges in a full-scale trial that we have otherwise found to be free

  of error, the chances that he could persuade a magistrate that no

  probable cause exists . . . are perhaps not ungenerously to be

  characterized as speculative.”).

  C.    The Court Erred When It Did Not Merge Gillis’s Conviction for
         First Degree Criminal Trespass, but Not His Conviction for
          Third Degree Assault, Into His Conviction for First Degree
                                  Burglary

¶ 25   Gillis argues that the elements of first degree burglary

  encompass the elements of first degree criminal trespass and third



                                     10
  degree assault. For this reason, he contends that the court erred

  by sua sponte failing to merge his convictions for first degree

  criminal trespass and third degree assault into his conviction for

  first degree burglary. The People concede, and we agree, that his

  conviction for first degree criminal trespass merges with his

  conviction for first degree burglary. Thus, we vacate his conviction

  for first degree criminal trespass. We disagree, however, that

  Gillis’s conviction for third degree assault merges because his

  multiple assaults against E.G support his convictions of the two

  separate offenses.

                        1.    Standard of Review

¶ 26   “Whether convictions for different offenses merge is a question

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

  402 P.3d 468, 469. If a defendant fails to preserve a double

  jeopardy claim based on merger, we review for plain error.

  Reyna-Abarca v. People, 2017 CO 15, ¶ 46, 390 P.3d 816, 823.

  “Errors that so undermine the fundamental fairness of the trial as

  to cast serious doubt on the reliability of the judgment of conviction

  constitute plain error.” People v. Vigil, 127 P.3d 916, 929-30 (Colo.

  2006). “In the double jeopardy context, the answer [to whether


                                    11
  plain error occurred] would invariably be ‘yes’” if the defendant was

  convicted multiple times for the same conduct. People v. Tillery,

  231 P.3d 36, 48 (Colo. App. 2009), aff’d sub nom. People v. Simon,

  266 P.3d 1099 (Colo. 2011).

                          2.    Legal Authority

¶ 27   The Double Jeopardy Clauses of the United States and

  Colorado Constitutions and the doctrine of merger protect an

  accused “against multiple punishments for the same offense,”

  unless the General Assembly “specif[ied] multiple punishments

  based upon the same criminal conduct.” Woellhaf v. People, 105

  P.3d 209, 214 (Colo. 2005) (quoting Whalen v. United States, 445

  U.S. 684, 688 (1980)); see U.S. Const. amends V, XIV; Colo. Const.

  art. II, § 18; People v. Delci, 109 P.3d 1035, 1036 (Colo. App. 2004)

  (discussing the merger doctrine).

¶ 28   The General Assembly has determined that “a defendant may

  not be convicted of two offenses for the same conduct if the lesser

  offense is included in the greater.” Page, ¶ 9, 402 P.3d at 470; see

  § 18-1-408(1)(a), C.R.S. 2019. We apply the statutory elements test

  articulated in Reyna-Abarca to determine whether an offense is a

  lesser included offense of another. Page, ¶ 9, 402 P.3d at 470. The


                                      12
  statutory elements test provides that “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.” Reyna-Abarca, ¶ 64, 390 P.3d at

  826. If the statutory elements test is satisfied, the lesser offense

  merges into the greater offense. Id. at ¶ 79, 390 P.3d at 827-28.

¶ 29   However, “[m]ultiple convictions for two separate offenses the

  elements of one of which constitute a subset of the elements of the

  other can clearly stand if the offenses were committed by distinctly

  different conduct.” People v. Rock, 2017 CO 84, ¶ 17, 402 P.3d 472,

  478. And a defendant may be convicted separately for the same

  offense if he or she committed the offense more than once. Id.

  Under either circumstance, a defendant may be convicted of both

  offenses only if (1) “the unit of prosecution prescribed by the

  legislature permits the charging of multiple offenses” and (2) “the

  evidence in support of each offense justifies the charging of distinct

  offenses.” Quintano v. People, 105 P.3d 585, 590 (Colo. 2005)

  (citing Woellhaf, 105 P.3d at 214).




                                    13
¶ 30     The unit of prosecution is “the manner in which a criminal

  statute permits a defendant’s conduct to be divided into discrete

  acts for purposes of prosecuting multiple offenses. Once the

  General Assembly prescribes the unit of prosecution, the

  prescription determines the scope of protection offered by the

  Double Jeopardy Clause.” Woellhaf, 105 P.3d at 215 (citations

  omitted). “To determine the unit of prosecution, we look exclusively

  to the statute and, where possible, seek to discern the legislative

  intent from the plain and ordinary meaning of the statutory

  language.” People v. McMinn, 2013 COA 94, ¶ 21, 412 P.3d 551,

  558.

¶ 31     After identifying the unit of prosecution, “we then examine the

  evidence to determine whether the defendant’s conduct constituted

  factually distinct offenses.” Id. at ¶ 22, 412 P.3d at 558. When

  determining whether a course of conduct constituted a single

  offense or multiple offenses, we consider the following

  nonexhaustive list of factors:

              (1) whether the acts occurred at different times
              and were separated by intervening events; (2)
              whether there were separate volitional acts or
              new volitional departures in the defendant’s
              course of conduct; and (3) factors such as


                                     14
             temporal proximity, the location of the victim
             (e.g., if the victim was moved), the defendant’s
             intent as indicated by his or her conduct and
             utterances, and the number of victims.

  Id.; see also Quintano, 105 P.3d at 591-92; Woellhaf, 105 P.3d at

  219. We also consider whether the prosecution treated the

  defendant’s acts as legally separable. Quintano, 105 P.3d at 592.

  Ultimately, the critical inquiry is “whether the evidence on which

  the jury relied for conviction was sufficient to support distinct and

  separate offenses.” Id.

  3.   The Court Erred in Failing to Merge Gillis’s Conviction for First
       Degree Criminal Trespass into His Conviction for First Degree
                                  Burglary

¶ 32   Gillis contends, the People concede, and we agree that,

  pursuant to the statutory elements test, first degree criminal

  trespass is a lesser included offense of first degree burglary. Thus,

  the court’s failure to merge his conviction for first degree criminal

  trespass into his conviction for first degree burglary amounted to

  plain error.

¶ 33   In holding that first degree criminal trespass is a lesser

  included offense of first degree burglary, we recognize that we

  depart from decisions of other divisions that took a different



                                    15
  position. See, e.g., People v. Lucas, 232 P.3d 155, 168 (Colo. App.

  2009) (“First degree criminal trespass is not a lesser included

  offense of first degree burglary, because it requires entry into a

  dwelling, which is not an element of burglary by statute or as

  charged and instructed here.”); see also People v. Garcia, 940 P.2d

  357, 362 (Colo. 1997) (holding that “first degree criminal trespass is

  not a lesser included offense of second degree burglary”). However,

  we conclude that the Colorado Supreme Court’s analysis in Rock,

  which post-dates these cases, compels the conclusion that first

  degree criminal trespass is a lesser included offense of first degree

  burglary.

¶ 34   The Colorado Supreme Court specified the test for determining

  whether an offense is a lesser included offense in Reyna-Abarca and

  clarified the relationship between criminal trespass and burglary in

  Rock. See Rock, ¶ 20, 402 P.3d at 479 (holding that second degree

  criminal trespass is a lesser included offense of second degree

  burglary); Reyna-Abarca, ¶ 59, 390 P.3d at 825-26 (explaining that

  the “prior articulations of the strict elements test have not provided

  . . . clear and consistent guidance,” thereby requiring the supreme

  court to adopt a standard that can be uniformly applied); see also


                                    16
  People v. Smoots, 2013 COA 152, ¶ 20, 396 P.3d 53, 57 (“We are not

  obligated to follow the precedent established by another division [of

  the court of appeals], even though we give such decisions

  considerable deference.”), aff’d sub nom. Reyna-Abarca, 2017 CO

  15, 390 P.3d 816.

¶ 35   In Rock, the court noted that “[s]econd degree burglary is

  committed by . . . knowingly entering or remaining unlawfully in a

  ‘building or occupied structure,’” which includes a “dwelling.” ¶ 20,

  402 P.3d at 479 (quoting § 18-4-203(1), C.R.S. 2019); see

  § 18-4-101(1), C.R.S. 2019. It also explained that “second degree

  criminal trespass is committed by, among various other means of

  commission, knowingly entering or remaining unlawfully in or upon

  ‘the premises of another,’” which includes “buildings.” Rock, ¶ 20,

  402 P.3d at 479 (quoting § 18-4-503(1)(a), C.R.S. 2019); see

  § 18-4-504.5, C.R.S. 2019. The court then held that

            [w]hile second degree criminal trespass may be
            committed in ways other than unlawfully
            entering or remaining in or upon the premises
            of another and, in fact, the premises at issue
            in criminal trespass need not even be a
            building, much less a dwelling, with reference
            to the element at issue here the commission of
            second degree criminal trespass requires no
            more than knowingly and unlawfully entering


                                   17
            or remaining in the dwelling of another, a
            subset of the statutory elements of second
            degree burglary.

  Rock, ¶ 20, 402 P.3d at 479.

¶ 36   As pertinent here, section 18-4-202(1) provides that a

  conviction for first degree burglary requires proof, among other

  things, that the defendant (1) knowingly (2) entered unlawfully, or

  remained unlawfully after a lawful or unlawful entry, (3) in a

  building or occupied structure. See also Lucas, 232 P.3d at 166-67.

  Section 18-4-502, C.R.S. 2019, similarly provides that a conviction

  for first degree criminal trespass requires proof that the defendant

  (1) knowingly and (2) unlawfully (3) entered or remained in a

  dwelling of another. See also People v. Hanna, 981 P.2d 627, 629

  (Colo. App. 1998) (discussing the elements of first degree criminal

  trespass and the meaning of “dwelling”).

¶ 37   Like the second degree criminal trespass offense discussed in

  Rock, the elements of first degree criminal trespass are knowingly

  and unlawfully entering or remaining in the dwelling of another.

  These elements are a subset of the elements of first degree burglary.

  Thus, first degree criminal trespass is a lesser included offense of

  first degree burglary. See Reyna-Abarca, ¶ 64, 390 P.3d at 826.


                                    18
¶ 38    Because the record contains no evidence that Gillis’s conduct

  could be sufficiently differentiated to support a conviction for each

  offense, the court plainly erred in failing to merge his conviction for

  first degree criminal trespass into his conviction for first degree

  burglary. See id. at ¶¶ 80-82, 390 P.3d at 828; Tillery, 231 P.3d at

  48. Accordingly, we vacate Gillis’s conviction and sentence for first

  degree criminal trespass. However, we do not remand for

  resentencing because the court imposed identical and concurrent

  sentences for each of Gillis’s convictions. See People v. Berner, 42

  Colo. App. 520, 522, 600 P.2d 112, 114 (1979); see also People v.

  Fuentes, 258 P.3d 320, 326 (Colo. App. 2011) (“[A] court should

  enter as many convictions and impose as many sentences as are

  legally possible so as to fully effectuate the jury’s verdict.”).

   4.    The Court Did Not Err in Holding that Gillis’s Convictions for
        Third Degree Assault and First Degree Burglary Did Not Merge

¶ 39    Given that the prosecution charged him with third degree

  assault as the predicate offense for his first degree burglary charge,

  Gillis contends that the court erred in failing sua sponte to merge

  his conviction for third degree assault into his conviction for first

  degree burglary. We disagree.



                                      19
¶ 40   Gillis is correct in asserting that section 18-4-202(1), which

  establishes the unit of prosecution, does not authorize separate

  punishments for first degree burglary and its predicate offense. See

  § 18-4-202(1) (assault is one of the predicate offenses for first

  degree burglary); Delci, 109 P.3d at 1037-38. However, “[s]eparate

  convictions for even the same offense are permissible if it was

  committed more than once.” Rock, ¶ 17, 402 P.3d at 478; see

  Quintano, 105 P.3d at 592 (upholding the defendant’s five

  convictions because sufficiently distinct evidence supported each

  conviction). Thus, we consider whether Gillis assaulted E.G. more

  than once. If so, one assault would be the predicate offense for his

  burglary conviction and the other assault would support a separate

  conviction for assault.

¶ 41   Although we cannot determine from the record the court’s

  reasoning in not merging Gillis’s convictions for first degree

  burglary and third degree assault, we conclude that this decision

  was correct because Gillis assaulted E.G. twice. See Rush Creek

  Sols., Inc. v. Ute Mountain Ute Tribe, 107 P.3d 402, 406 (Colo. App.

  2004) (holding that an appellate court may affirm the trial court’s

  ruling on any grounds supported by the record).


                                     20
¶ 42   We primarily base our reasoning on two cases: Quintano and

  Qureshi v. District Court, 727 P.2d 45 (Colo. 1986). In Quintano, the

  supreme court affirmed the defendant’s five convictions for sexual

  assault on a child based on evidence that he followed the victim

  around her aunt’s home and (1) touched her breast in the living

  room; (2) touched her vaginal area at the home’s pool; (3) touched

  her buttocks in the bathroom; (4) touched her breast in the

  bathroom; and (5) bit her breast in the living room. 105 P.3d at

  588-89, 592. It reasoned that

            [t]he record evidences that the defendant had
            sufficient time to reflect after each encounter.
            He persisted after the victim admonished him
            to stop several times. Each incident occurred
            in a different location [of the home], or after
            the victim had left a location and returned
            there. As well, the record reflects sufficient
            breaks between each incident to allow the
            defendant time to reflect. Moreover, the
            defendant’s statements supported the forming
            of renewed intentions. Though the record does
            not disclose specifically how long each incident
            lasted, the facts prove that the defendant’s
            conduct was separate in temporal proximity
            and constituted a new volitional departure in
            his course of conduct.

  Id. at 592. The court also noted that the prosecution treated the

  defendant’s acts as legally separable by charging him with five



                                   21
  counts and arguing in support of all the counts during the

  preliminary hearing. Id.

¶ 43   In Qureshi, the supreme court upheld the defendant’s

  convictions for attempted manslaughter and first degree assault

  because “there were two separate and different sets of acts which

  occasioned two crimes.” 727 P.2d at 47. It held that the evidence

  at trial supported the defendant’s conviction for first degree assault

  because he stabbed the victim in the abdomen and his conviction

  for attempted manslaughter because, after the victim escaped the

  initial assault, he pursued her to a separate room and stabbed her

  again. Id.

¶ 44   For four reasons, we discern no meaningful difference between

  the facts supporting Gillis’s convictions for first degree burglary and

  third degree assault and the facts supporting the defendants’

  multiple convictions in Quintano and Qureshi.

¶ 45   First, Gillis’s conduct occurred at different times and was

  separated by intervening events. Gillis initially assaulted E.G. by

  smothering her after throwing her on the floor and on her bed.

  Then, after E.G. managed to escape to the bathroom, text her friend

  for help, and emerge from the bathroom, Gillis slammed her head


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  into a wall, dragged her down the hallway, and choked her with a

  towel. Thus, like the defendants in Quintano and Qureshi, Gillis

  engaged in an initial criminal act, allowed the victim to leave the

  immediate area, and then committed another criminal act against

  the same victim after a short period of time.

¶ 46   Second, Gillis engaged in separate volitional acts during his

  assaults on E.G. E.G. yelled at Gillis to stop throughout the entire

  episode — before he kicked down her door and while in her

  apartment. Therefore, like the defendant in Quintano, Gillis knew

  that the victim opposed his actions, but proceeded anyway. 105

  P.3d at 592. Moreover, while E.G. was in the bathroom, Gillis had

  sufficient opportunity to reflect on his course of conduct. See id.;

  Qureshi, 727 P.2d at 47.

¶ 47   Third, Gillis’s conduct supported the formation of renewed

  intentions to assault E.G. He assaulted her at different locations

  within her apartment. As noted above, after E.G. temporarily

  escaped to the bathroom, Gillis had time to reflect on his actions.

  Instead of leaving the apartment or de-escalating the situation, he

  hit or kicked the bathroom door until E.G. emerged, slammed her

  head into a wall, dragged her across the floor, and choked her with


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  a towel. And, this time, the assault occurred in the hallway and in

  the kitchen of E.G.’s apartment, instead of near the front door and

  in the bedroom. See Quintano, 105 P.3d at 592; Qureshi, 727 P.2d

  at 47.

¶ 48   Lastly, although the prosecutor did not clearly argue that each

  of Gillis’s acts (and E.G.’s corresponding injuries) fit into one of two

  distinct assaults, Gillis was charged with first degree burglary and

  second degree assault. The prosecutor consistently asserted that

  Gillis committed all the charged offenses. Thus, the prosecution

  treated Gillis’s assaults as legally separable. See Quintano, 105

  P.3d at 592.

¶ 49   Because each of the four factors supports our conclusion that

  Gillis assaulted E.G. twice and because “the evidence on which the

  jury relied for conviction was sufficient to support distinct and

  separate offenses,” id., we hold that the court did not err in entering

  the convictions for first degree burglary and third degree assault.

                             III.   Conclusion

¶ 50   Gillis’s conviction for first degree criminal trespass is vacated.

  We affirm his convictions for first degree burglary and third degree

  assault.


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JUDGE FOX and JUDGE BERGER concur.




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