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                                                         ADVANCE SHEET HEADNOTE
                                                                  November 13, 2018

                                        2018 CO 90

No. 14SC997, Friend v. People—Plain Error Review—Double Jeopardy—Merger—
Lesser Included Offenses.

       This case principally presents two double jeopardy questions: (1) whether the

child abuse statute, section 18-6-401, C.R.S. (2018), prescribes more than one unit of

prosecution and whether the prosecution presented sufficient evidence to establish that

the defendant committed more than one crime of child abuse and (2) whether child abuse

resulting in death under sections 18-6-401(1)(a) and (7)(a)(1), is a lesser included offense

of first-degree murder of a child under section 18-3-102(1)(f), C.R.S. (2018) (“child abuse

murder”).

       As to the first double jeopardy question presented here, applying the principles

set forth in Schneider v. People, 2016 CO 70, ¶ 13, 382 P.3d 835, 839, and People v. Abiodun,

111 P.3d 462, 466–68 (Colo. 2005), the court concludes that the division below correctly

determined that section 18-6-401 creates one crime of child abuse that can be committed

in alternative ways. The question thus becomes whether the prosecution proved separate

counts of child abuse. The court again agrees with the division and concludes that the
prosecution did not do so and that, therefore, each of the child abuse convictions must

merge into one conviction for child abuse resulting in death.

       As to the second double jeopardy question at issue, the court concludes for two

reasons that the division erred in determining that the defendant’s merged child abuse

resulting in death conviction does not merge into his child abuse murder conviction.

First, the plain language of the applicable statutes shows that “[w]hen a person

knowingly causes the death of a child who has not yet attained twelve years of age and

the person committing the offense is one in a position of trust with respect to the child,”

that person is to be convicted of child abuse murder and not child abuse resulting in

death. § 18-6-401(7)(c). Second, under the clarified principles set forth in People v. Rock,

2017 CO 84, 402 P.3d 472, and Page v. People, 2017 CO 88, 402 P.3d 468, which were

announced after the division’s decision in this case, child abuse resulting in death is a

lesser included offense of child abuse murder.

       Having determined that the trial court erred in not merging the various counts in

this case, the question remains whether these errors were plain. The court concludes that

they were and therefore affirms in part and reverses in part the division’s judgment.
                    The Supreme Court of the State of Colorado
                    2 East 14th Avenue • Denver, Colorado 80203

                                      2018 CO 90

                         Supreme Court Case No. 14SC997
                       Certiorari to the Colorado Court of Appeals
                        Court of Appeals Case No. 09CA2536

                            Petitioner/Cross-Respondent:

                                 Mark Alton Friend,

                                           v.

                            Respondent/Cross-Petitioner:

                         The People of the State of Colorado.

                  Judgment Affirmed in Part and Reversed in Part
                                     en banc
                               November 13, 2018


Attorneys for Petitioner/Cross-Respondent:
Megan A. Ring, Colorado State Public Defender
Jon W. Grevillius, Deputy State Public Defender
      Denver, Colorado


Attorneys for Respondent/Cross-Petitioner:
Cynthia H. Coffman, Attorney General
Matthew S. Holman, First Assistant Attorney General
      Denver, Colorado



JUSTICE GABRIEL delivered the Opinion of the Court.
¶1       This case principally presents two double jeopardy questions: (1) whether the

child abuse statute, section 18-6-401, C.R.S. (2018), prescribes more than one unit of

prosecution and whether the prosecution presented sufficient evidence to establish that

the defendant, Mark Alton Friend, committed more than one crime of child abuse and

(2) whether child abuse resulting in death under sections 18-6-401(1)(a) and (7)(a)(1), is a

lesser included offense of first-degree murder of a child under section 18-3-102(1)(f),

C.R.S. (2018) (“child abuse murder”).1

¶2       As to the first double jeopardy question presented here, applying the principles

set forth in Schneider v. People, 2016 CO 70, ¶ 13, 382 P.3d 835, 839, and People v. Abiodun,

111 P.3d 462, 466–68 (Colo. 2005), we conclude that the division below correctly

determined that section 18-6-401 creates one crime of child abuse that can be committed



1   Specifically, we granted certiorari to review the following issues:
1. Whether child abuse causing death as part of a pattern of conduct under section
   18-6-401(1)(a), (7)(a)(I), C.R.S. (2008), merges into first-degree murder child abuse
   under section 18-3-102(1)(f), C.R.S. (2008), when they are based on identical evidence
   and the death results solely from accumulated injuries.
2. Whether the court of appeals erred when it held that the defendant’s double jeopardy
   claim was not waived and the trial court’s failure to sua sponte merge the defendant’s
   child abuse convictions constituted plain error.
3. Whether the court of appeals erred when it held that Colorado’s child abuse statute,
   section 18-6-401, C.R.S. (2008), only provides means of committing a single offense of
   child abuse; and the defendant may only be convicted of a single count of child abuse
   for numerous acts of torture and abuse that took place at different times over several
   days.
In Reyna-Abarca v. People, 2017 CO 15, ¶ 47, 390 P.3d 816, 823, we concluded that an
appellate court may review an unpreserved double jeopardy claim and that the court
should ordinarily review such a claim for plain error. Accordingly, we need not address
the second question on which we granted certiorari review. Under Reyna-Abarca, our
review of the double jeopardy claim in this case is for plain error.

                                               2
in alternative ways. The question thus becomes whether the prosecution proved separate

counts of child abuse.     We again agree with the division and conclude that the

prosecution did not do so and that, therefore, each of the child abuse convictions must

merge into one conviction for child abuse resulting in death.

¶3     As to the second double jeopardy question at issue, we conclude for two reasons

that the division erred in determining that Friend’s merged child abuse resulting in death

conviction does not merge into his child abuse murder conviction. First, the plain

language of the applicable statutes shows that “[w]hen a person knowingly causes the

death of a child who has not yet attained twelve years of age and the person committing

the offense is one in a position of trust with respect to the child,” that person is to be

convicted of child abuse murder and not child abuse resulting in death. § 18-6-401(7)(c).

Second, under the clarified principles set forth in People v. Rock, 2017 CO 84, 402 P.3d 472,

and Page v. People, 2017 CO 88, 402 P.3d 468, which were announced after the division’s

decision in this case, child abuse resulting in death is a lesser included offense of child

abuse murder.

¶4     Having determined that the trial court erred in not merging the various counts in

this case, the question remains whether these errors were plain. We conclude that they

were and therefore we affirm in part and reverse in part the division’s judgment.

                            I. Facts and Procedural History

¶5     This case involves the death of four-year-old MB, the daughter of Friend’s

girlfriend. Late one evening, MB stopped breathing and was transported to the hospital



                                             3
in cardiac arrest. The next day, she was declared legally brain dead, and, pursuant to

instructions from her biological father, she was removed from life support.

¶6     During an interview with law enforcement on the day that MB was transported to

the hospital (and before she died), Friend admitted to striking and throwing MB several

times in the prior few days. Specifically, he stated that two days earlier, he had thrown

her against a door, and she hit her head on the doorknob. He further conceded that, on

that same day, he had repeatedly “popped” MB in the back of the head with his open

hand and that he had held her head underwater in the bathtub for at least five seconds.

And he said that, during the previous day, he had hit MB on the back of the head with

an open hand and with such force that it caused her to fly forward, hit her head against

the bed mattress, and bounce backward off the bed and hit her head on the floor. Friend

then picked her up and threw her on the bed, after which she vomited and within a few

minutes became unresponsive. Friend did not seek medical attention for MB after any of

these incidents.

¶7     Friend was ultimately charged with (1) first-degree murder—victim under twelve,

position of trust; (2) child abuse resulting in death; (3) child abuse resulting in death—

pattern of conduct; (4) two counts of child abuse causing serious bodily injury; and

(5) child abuse causing serious bodily injury—pattern of conduct. In pleading each of

these counts, the information generally tracked the language of the pertinent statutory

provisions, but it did not indicate the specific facts supporting each count.

¶8     The case proceeded to trial, and, at trial, the prosecution treated Friend’s abuse of

MB as one pattern of conduct that ultimately resulted in her death, rather than as multiple

                                             4
patterns and discrete offenses. A jury convicted Friend on all counts, the trial court

entered judgment on each count, and the court sentenced Friend to life in prison without

the possibility of parole.

¶9     Friend appealed and raised two contentions that are pertinent here. First, he

argued that his five child abuse convictions should merge into a single conviction because

the child abuse counts represented alternative means of committing the same offense and

the evidence did not support factually distinct offenses. Second, he argued that his

remaining child abuse conviction should merge into his child abuse murder conviction

because (1) the child abuse statute permitted the prosecution to file first-degree murder

charges when the defendant’s conduct resulted in the death of a child under the age of

twelve and the defendant was in a position of trust with respect to the child and (2) the

child abuse counts were included in the child abuse murder count.

¶10    In a unanimous, published decision, a division of the court of appeals agreed with

Friend’s first contention but disagreed with his second. People v. Friend, 2014 COA 123M,

¶ 45, __ P.3d __. As to the first, the division applied our decision in Abiodun, 111 P.3d at

466–71, and concluded that the child abuse statute creates one offense that can be

committed in alternative ways and that the prosecution had not proved separate offenses

here. Friend, ¶¶ 61–72. As to the second, the division applied the test set forth in

Blockburger v. United States, 284 U.S. 299, 304 (1932), and concluded that child abuse

resulting in death is not a lesser included offense of child abuse murder.           Friend,

¶¶ 78–83.    Accordingly, the division declined to merge those convictions.           Id. at

¶¶ 82–83.

                                             5
¶11    Friend then petitioned and the People cross-petitioned for certiorari. We granted

both petitions.

                                      II. Analysis

¶12    We begin by discussing whether the division below erred in determining that

Friend’s child abuse convictions must merge. After concluding that the division did not

err in this regard, we proceed to consider whether the division erred in determining that

Friend’s child abuse resulting in death conviction does not merge into his conviction for

child abuse murder. Based on the plain language of the applicable statutes and prevailing

principles governing lesser included offenses, we conclude that the division erred in

determining that these counts do not merge. We end by considering whether the trial

court’s errors in not merging Friend’s various convictions were plain, and we conclude

that they were, necessitating amendment of the mittimus.

                             A. Child Abuse Convictions

¶13    The People contend that the division erred in concluding that each of Friend’s

child abuse convictions must merge into one conviction for child abuse resulting in

death—pattern of conduct. We are not persuaded.

¶14    The Double Jeopardy Clauses of both the United States and Colorado

Constitutions protect an accused from being twice placed in jeopardy for the same

offense. U.S. Const. amend. V; Colo. Const. art. II, § 18; Boulies v. People, 770 P.2d 1274,

1277 (Colo. 1989). These Clauses protect not only against a second trial for the same

offense but also, as pertinent here, against multiple punishments for the same offense.

Woellhaf v. People, 105 P.3d 209, 214 (Colo. 2005). The Clauses do not, however, prevent

                                             6
the General Assembly from authorizing multiple punishments based on the same

criminal conduct. Id. In this way, “the Double Jeopardy Clause simply embodies the

constitutional principle of separation of powers by ensuring that courts do not exceed

their own authority by imposing multiple punishments not authorized by the

legislature.” Id.

¶15    It is the legislature’s province to establish and define offenses by prescribing the

allowable unit of prosecution. Id. at 215. “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.” Id.

¶16    To determine the allowable unit of prosecution, we look to the statutory language.

Id. In doing so, we have recognized that when “a number of acts are joined as a

disjunctive series, in a single sentence, without any attempt to differentiate them by name

or other organizational device, a legislative intent to permit separate convictions and

sentences for each enumerated act is not so readily apparent.” Abiodun, 111 P.3d at 466.

To the contrary, we have observed that “by joining alternatives disjunctively in a single

provision of the criminal code, the legislature intended to describe alternate ways of

committing a single crime rather than to create separate offenses.” Id. at 467; see also

Schneider, ¶ 13, 382 P.3d at 839 (“Where . . . alternate descriptions of criminal behavior are

disjoined within a single section of the code and bear the same criminal name, a

legislative intent to create different offenses and permit separate convictions and

sentences for each is not so readily apparent and must be ascertained, if at all, by other

considerations.”); Woellhaf, 105 P.3d at 217 (“By demarcating intimate parts with the

                                              7
disjunctive ‘or,’ the General Assembly did not prescribe multiple offenses or otherwise

alter the scope of the unit of prosecution.”).

¶17    In contrast, we have observed that the General Assembly has made clear its intent

to proscribe related activities as different crimes by “naming each and segregating them

in the criminal code.” Abiodun, 111 P.3d at 468.

¶18    Turning to the case before us, we note that the child abuse statute provides, in

pertinent part:

       A person commits child abuse if such person causes an injury to a child’s
       life or health, or permits a child to be unreasonably placed in a situation
       that poses a threat of injury to the child’s life or health, or engages in a
       continued pattern of conduct that results in malnourishment, lack of proper
       medical care, cruel punishment, mistreatment, or an accumulation of
       injuries that ultimately results in the death of a child or serious bodily injury
       to a child.

§ 18-6-401(1)(a).

¶19    As the division below properly observed, this statute sets forth a disjunctive series

of acts in an extended single sentence without any attempt to differentiate the acts by

name or other organizational device. Friend, ¶ 62. Accordingly, pursuant to Abiodun,

Schneider, and Woellhaf, we conclude that the child abuse statute prescribes a single crime

of child abuse that can be committed in alternate ways.

¶20    In so concluding, we are not persuaded by the People’s contention that under the

child abuse statute, the unit of prosecution is the infliction of a specified harm, whether

through a single act or a pattern of conduct. The People cite no applicable authority

supporting this position, and, in our view, the People’s position is inconsistent with the

above-discussed principles set forth in Abiodun, Schneider, and Woellhaf.

                                                 8
¶21    This, however, does not end our analysis because a statute that prescribes a single

unit of prosecution does not immunize a defendant from being punished separately for

successive commissions of the same offense. Abiodun, 111 P.3d at 470. Accordingly, we

must next consider whether Friend’s acts evinced factually distinct offenses. See Woellhaf,

105 P.3d at 218–19.

¶22    To make this determination, “we look to all the evidence introduced at trial to

determine whether the evidence on which the jury relied for conviction was sufficient to

support distinct and separate offenses.” Quintano v. People, 105 P.3d 585, 592 (Colo. 2005);

see also Woellhaf, 105 P.3d at 219 (noting that in determining if the defendant’s conduct

constituted factually distinct offenses, we may consider whether, among other things, the

acts “occurred at different locations, were the product of new volitional departures, or

were separated by intervening events”). If each legally distinct offense has been charged

with sufficient specificity to distinguish it from other offenses and if the evidence at trial

supported convictions on each such count, then general verdicts of guilt will support

multiple convictions. Abiodun, 111 P.3d at 471.

¶23    Here, the prosecution charged Friend with five counts of child abuse: (1) child

abuse causing death; (2) child abuse causing death—pattern of conduct; (3) two counts of

child abuse causing serious bodily injury; and (4) child abuse causing serious bodily

injury—pattern of conduct. As noted previously, however, the information did not allege

specific facts supporting each of these individual counts. Moreover, although before us

the People have attempted to assign specific facts to particular counts, the prosecution

did not try the case that way. See id. (noting that in determining whether a defendant’s

                                              9
acts evinced factually distinct offenses, we look to how the offenses were charged and to

the evidence at trial); Quintano, 105 P.3d at 592 (noting that a reviewing court looks to the

evidence introduced at trial to determine whether the evidence was sufficient to support

separate and distinct offenses). To the contrary, the record reveals that at trial, the

prosecution did not seek to prove discrete injuries differentiating the various child abuse

counts. Instead, it established a number of acts comprising a single pattern of abuse that

caused MB’s death.

¶24    For these reasons, we conclude that the division below correctly ruled that the

prosecution did not prove that Friend had committed separate crimes of child abuse.

Rather, the prosecution proved only one count of child abuse resulting in death—pattern

of conduct.

      B. Merger of the Child Abuse and Child Abuse Murder Convictions

¶25    Friend argues that the division erred in concluding that his remaining child abuse

conviction does not merge into his child abuse murder conviction. He asserts that both

the applicable statutory language and our case law regarding lesser included offenses

require that these convictions merge. We agree with both of these contentions and

address them in turn.

                                 1. Section 18-6-401(7)(c)

¶26    Section 18-6-401(7)(a)(I) of the child abuse statute provides, “When a person acts

knowingly or recklessly and the child abuse results in death to the child, it is a class 2

felony except as provided in paragraph (c) of this subsection (7).” (Emphasis added.)

¶27    Section 18-6-401(7)(c), in turn, states:

                                              10
       When a person knowingly causes the death of a child who has not yet
       attained twelve years of age and the person committing the offense is one
       in a position of trust with respect to the child, such person commits the
       crime of murder in the first degree as described in section 18-3-102(1)(f).

¶28    In our view, this language is plain and unambiguous and makes clear that when

the child suffered abuse resulting in death, the child was under twelve, and the defendant

was in a position of trust, the defendant has committed child abuse murder and not child

abuse resulting in death.

¶29    Our conclusion in this regard is reinforced by the “except as” language in section

18-6-401(7)(a)(I). That language makes clear that when the conditions set forth in that

subsection are satisfied, the defendant has committed child abuse resulting in death,

except when the additional factors set forth in section 18-6-401(7)(c) are established. In that case,

the applicable crime is child abuse murder.

¶30    For this reason, we conclude that the division erred in determining that Friend’s

remaining child abuse conviction does not merge into his child abuse murder conviction.

         2. Child Abuse Resulting in Death as a Lesser Included Offense

¶31    Even absent the foregoing statutory analysis, we would still conclude, based on

prevailing principles governing lesser included offenses, that the division erred in

determining that Friend’s child abuse resulting in death conviction does not merge into

his child abuse murder conviction. Although we believe that our foregoing statutory

analysis is alone dispositive, we address the lesser included offense issue because the

division did so in a published opinion in a manner with which we respectfully disagree.




                                                 11
¶32    The Colorado General Assembly has determined that if one offense is included in

another offense, a defendant may not be convicted of both offenses. § 18-1-408(1)(a),

C.R.S. (2018). An offense is included in another when the lesser offense “is established

by proof of the same or less than all the facts required to establish the commission of the

offense charged.” § 18-1-408(5)(a).

¶33    In a series of cases decided in 2017, we provided guidance as to how to determine

whether one offense is included in another.

¶34    In Reyna-Abarca, ¶ 64, 390 P.3d at 826, we held 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.”

¶35    Thereafter, in Rock and Page, we addressed a scenario not presented in

Reyna-Abarca, namely, where the lesser offense could be committed in multiple ways, not

all of which are necessarily established by proof of the greater offense. Rock, ¶ 15,

402 P.3d at 477–78; Page, ¶ 11, 402 P.3d at 470. We clarified that our use of the word

“contains” in Reyna-Abarca should be understood as “necessarily contains” or “requires.”

Rock, ¶ 16, 402 P.3d at 478; Page, ¶ 11, 402 P.3d at 470. Thus, we recognized, “To the extent

that a lesser offense is statutorily defined in disjunctive terms, effectively providing

alternative ways of being committed, any set of elements sufficient for commission of that

lesser offense necessarily established by establishing the statutory elements of a greater

offense constitutes an included offense.” Rock, ¶ 16, 402 P.3d at 478.

¶36    Accordingly,

                                             12
       [i]n order to be included, every alternative way of committing a lesser
       offense, only one of which is “required,” therefore need not be “contained”
       in the statutory definition of that greater offense. To be an included offense,
       it is enough that any particular set of elements sufficient for conviction of
       that offense be so contained.

Rock, ¶ 16, 402 P.3d at 478; accord Page, ¶ 11, 402 P.3d at 470.

¶37    Applying these principles here, we conclude that child abuse resulting in death is

a lesser included offense of child abuse murder.

¶38    The child abuse statute, like the statutes at issue in Rock and Page, is defined in a

set of disjunctive terms effectively providing alternative ways to commit the crime of

child abuse.    Specifically, as pertinent here, the statute requires proof that (1) the

defendant (2) knowingly or recklessly (3) caused an injury to a child’s life or health,

permitted a child to be unreasonably placed in a situation that posed a threat of injury to

the child’s life or health, or engaged in a continued pattern of conduct that resulted in

malnourishment, lack of proper medical care, cruel punishment, mistreatment, or an

accumulation of injuries that ultimately resulted in the death of or serious bodily injury

to a child, and (4) the child abuse resulted in the child’s death. § 18-6-401(1)(a), (7)(a).

¶39    The child abuse murder statute, in turn, requires proof that (1) the defendant

(2) knowingly (3) caused the death of a child who had not yet attained twelve years of

age and (4) the defendant was in a position of trust with respect to the child.

§ 18-3-102(1)(f).

¶40    Under Rock and Page, as long as the prosecution’s proof of the statutory elements

of child abuse murder established any set of elements sufficient to prove child abuse



                                              13
resulting in death, then child abuse resulting in death is a lesser included offense of child

abuse murder.

¶41    Here, the prosecution’s proof that Friend knowingly caused MB’s death at a time

when she was under twelve years old and Friend was in a position of trust established a

set of elements sufficient to prove child abuse resulting in death. Specifically, the

prosecution’s evidence of child abuse murder established, at a minimum, that Friend had

knowingly or recklessly caused an injury to a child’s life or health and that child abuse

resulted in the child’s death.

¶42    Accordingly, we conclude that child abuse resulting in death is a lesser included

offense of child abuse murder and that the division, which did not have the benefit of

Reyna-Abarca, Rock, or Page when it issued its opinion, erred in ruling otherwise.

¶43    In reaching this conclusion, we are not persuaded by the People’s contention that

child abuse resulting in death is not included in child abuse murder because, as charged

here, the former must be proven through a pattern, which is not a required element of

child abuse murder. This argument ignores the clarification of our lesser included offense

test set forth in Rock and Page, which concerned the scenario presented in this case,

namely, when a lesser offense can be committed in multiple ways not all of which are

necessarily included in the greater offense.

                                      C. Plain Error

¶44    The question remains whether the trial court plainly erred in not merging Friend’s

child abuse convictions into one conviction for child abuse resulting in death—pattern of



                                               14
conduct and that remaining child abuse conviction into one conviction for child abuse

murder.

¶45    As we stated in Reyna-Abarca, ¶ 81, 390 P.3d at 828, “In both our own jurisprudence

and in case law nationally, courts have invariably concluded that 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.”

¶46    Here, as in Reyna-Abarca, the People have presented no compelling arguments as

to why the double jeopardy errors at issue did not rise to the level of plain error. Nor do

we perceive a persuasive argument as to why, having discerned error, we should not

follow the lead of the vast majority of cases and provide Friend with a remedy.

¶47    Accordingly, we conclude that the trial court plainly erred in not merging the child

abuse convictions into one conviction for child abuse resulting in death—pattern of

conduct and that remaining child abuse conviction into one conviction for child abuse

murder.

                                    III. Conclusion

¶48    For these reasons, we conclude that section 18-6-401 creates one crime of child

abuse that can be committed in alternate ways and that the prosecution did not prove

separate counts of child abuse. We further conclude that the child abuse statute precludes

conviction of child abuse resulting in death when the prosecution proves child abuse

murder and that, in any event, child abuse resulting in death is a lesser included offense

of child abuse murder, thereby precluding convictions on both counts. Finally, we

conclude that the trial court plainly erred in not merging the child abuse convictions into

                                            15
one conviction for child abuse resulting in death—pattern of conduct and that remaining

child abuse conviction into one conviction for child abuse murder.

¶49   Accordingly, we affirm in part and reverse in part the division’s judgment, and

we remand this case to the division with instructions that the division return the case to

the trial court for entry of an amended mittimus reflecting the merger of the child abuse

convictions into one conviction for child abuse resulting in death—pattern of conduct

and the merger of that remaining child abuse conviction into the child abuse murder

conviction, resulting in one conviction and judgment for child abuse murder.




                                           16
