     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
                                                          September 6, 2018

                               2018COA127

No. 14CA2242 People v. Welborne — Crimes — First Degree
Arson — Criminal Mischief; Criminal Law — Prosecution of
Multiple Counts for Same Act — Lesser Included Offenses

     On remand from the Colorado Supreme Court, a division of

the Colorado Court of Appeals considers whether criminal mischief

is an included offense of first degree arson. In light of the supreme

court’s recent decisions in People v. Rock, 2017 CO 84, and Page v.

People, 2017 CO 88, the division concludes that criminal mischief is

included in first degree arson where both offenses are based on the

same conduct. Therefore, the division vacates the defendant’s

conviction and sentence for criminal mischief.
COLORADO COURT OF APPEALS                                      2018COA127


Court of Appeals No. 14CA2242
Larimer County District Court No. 13CR1167
Honorable Julie Kunce Field, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Christopher Wesley Welborne,

Defendant-Appellant.


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

                                 Division V
                        Opinion by JUDGE NAVARRO
                       Hawthorne and Dunn, JJ., concur

                        Announced September 6, 2018


Cynthia H. Coffman, Attorney General, Brock J. Swanson, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Nicole M. Mooney, Alternate Defense Counsel, Denver, Colorado, for Defendant-
Appellant
¶1    Defendant, Christopher Wesley Welborne, appeals the

 judgment of conviction entered on jury verdicts finding him guilty of

 first degree arson, criminal mischief, theft, and attempted theft. We

 previously rejected his challenges to his convictions in People v.

 Welborne, 2017 COA 105, cert. granted in part, judgment vacated,

 and case remanded, No. 17SC671 (Colo. June 11, 2018)

 (unpublished order). Among other holdings, we concluded that

 criminal mischief is not an included offense of first degree arson.

 Id. at ¶¶ 50-61. We relied on the Colorado Supreme Court’s ruling

 in Reyna-Abarca v. People, 2017 CO 15. After our decision,

 however, the supreme court clarified Reyna-Abarca in People v.

 Rock, 2017 CO 84, and Page v. People, 2017 CO 88. The supreme

 court, without opinion, then vacated our judgment as to the

 included-offense issue and remanded it to us for reconsideration in

 light of Rock and Page.

¶2    Upon that reconsideration, we hold that Welborne’s criminal

 mischief conviction is an included offense of his first degree arson

 conviction because they are based on the same conduct. Therefore,

 we vacate the criminal mischief conviction and sentence, remand




                                   1
 for the trial court to amend the mittimus accordingly, and otherwise

 affirm the judgment.1

                I.     Factual and Procedural History

¶3     Because our earlier opinion details the facts and proceedings

 leading to Welborne’s convictions, we will not recite them all. See

 Welborne, ¶¶ 2-14. Suffice it to say that the prosecution charged

 Welborne and his mother with setting fire to their rented house and

 then filing false insurance claims based on the fire damage.

¶4     The jury convicted him as charged. Both the first degree

 arson and the criminal mischief convictions were based on his (or

 his mother’s) setting fire to the house. Both were class 3 felonies

 given the amount of damage. The trial court sentenced Welborne to

 concurrent prison terms for the arson, criminal mischief, theft, and

 attempted theft.

     II.    Is Criminal Mischief Included in First Degree Arson?

¶5     Welborne contends that criminal mischief is an included

 offense of first degree arson and, therefore, those convictions must



 1 The Colorado Supreme Court denied Welborne’s petition for writ of
 certiorari as to all other issues. So, all our other holdings in People
 v. Welborne, 2017 COA 105, remain good law and resolve his other
 appellate contentions.

                                    2
 merge under both statutory and double jeopardy dictates. He finds

 support in People v. Abeyta, 541 P.2d 333 (Colo. App. 1975) (not

 published pursuant to C.A.R. 35(f)). The Abeyta division held that

 first degree arson includes criminal mischief “because the essential

 elements of the latter are necessarily proven if the elements of the

 first are present.” Id. at 335.

¶6    The People concede that Abeyta was correct at the time it was

 decided. But the People argue that the supreme court’s decisions

 announced after Welborne’s trial — namely, Reyna-Abarca, Rock,

 and Page — changed the landscape and require the opposite

 conclusion. We disagree. The decisions in Rock and Page confirm

 that Abeyta was right all along.

                        A.    Standard of Review

¶7    We review de novo a claim that a conviction violates the

 constitutional prohibition against double jeopardy. People v.

 McMinn, 2013 COA 94, ¶ 18. Because Welborne did not preserve

 this issue, we may reverse only if plain error occurred.

 Reyna-Abarca, ¶ 2; People v. Morales, 2014 COA 129, ¶¶ 46-47.




                                    3
                             B.   Analysis

                        1.   General Principles

¶8    Constitutional double jeopardy protections preclude imposing

 multiple punishments for the same offense when the General

 Assembly has not conferred specific authorization for multiple

 punishments. Page, ¶ 8. The legislature has determined that, if

 one offense is included in another offense, a defendant may not be

 convicted of both. § 18-1-408(1)(a), C.R.S. 2017. As pertinent here,

 one offense is included in another offense charged when “[i]t is

 established by proof of the same or less than all the facts required

 to establish the commission of the offense charged.” § 18-1-

 408(5)(a); Reyna-Abarca, ¶ 51. This statute requires a “statutory

 elements” or “strict elements” test, under which we compare the

 elements of the statutes rather than the specific evidence used to

 sustain the charges in a particular case. Reyna-Abarca, ¶ 53.

¶9    Under the supreme court’s formulation of the statutory

 elements test in Reyna-Abarca, ¶ 64, “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


                                   4
  the elements of the greater offense.” The Reyna-Abarca court

  recognized, however, that “one offense is not a lesser included

  offense of another if the lesser offense requires an element not

  required for the greater offense.” Id. at ¶ 60 (discussing Schmuck v.

  United States, 489 U.S. 705 (1989), from which the Reyna-Abarca

  court fashioned its new test).

¶ 10   In addition, the supreme court in Reyna-Abarca, ¶¶ 65-67,

  disavowed Meads v. People, 78 P.3d 290 (Colo. 2003), which had

  applied the following test: if proof of facts establishing the statutory

  elements of the greater offense necessarily establishes all the

  elements of the lesser offense, the lesser offense is included. See

  Reyna-Abarca, ¶ 65. Seemingly eschewing the analysis of Meads,

  the Reyna-Abarca court explained that “the result in Meads would

  have been different” under its “clarified version of the strict

  elements test” (i.e., the subset analysis). Id. at ¶ 67; see also Page,

  ¶ 10 (“Although the greater offenses in Reyna-Abarca . . . could be

  established by means that would not necessarily establish

  commission of the lesser offense . . . , we concluded that the lesser

  offense was included in, and therefore merged into, the greater

  offenses because the elements of the lesser offense are a subset of


                                     5
  the elements of the greater offenses.”). We applied Reyna-Abarca in

  our earlier decision. Welborne, ¶¶ 57-61.

¶ 11   Shortly thereafter, however, the supreme court revisited the

  test set forth in Reyna-Abarca and revealed a significant “corollary”

  to its subset analysis: “[I]f establishing the elements of the greater

  offense necessarily establishes the elements of the lesser, then the

  lesser offense is included in the greater.” Page, ¶ 11 (citing Rock,

  ¶ 16). The supreme court also disapproved of its reasoning in

  Zubiate v. People, 2017 CO 17, which had been announced

  simultaneously with Reyna-Abarca and applied Reyna-Abarca.

  Rock, ¶ 16 n.4; see People v. Wambolt, 2018 COA 88, ¶¶ 58-63

  (concluding that Zubiate is no longer good law in light of Rock). The

  upshot of the supreme court’s decisions in Rock and Page is that

  there are two ways in which an offense may be included in another

  under section 18-1-408(5)(a) and the double jeopardy clause.

¶ 12   First, “a lesser offense is included in the greater offense when

  there are multiple ways to commit the greater and proof of the

  commission of at least one of which necessarily proves commission

  of the lesser.” Page, ¶ 10. Second, “[a]n offense can also be

  included in another under the statutory elements test when there


                                     6
  are multiple ways to commit the lesser, not all of which are

  included within the greater.” Id. at ¶ 11. “[A]ny set of elements

  sufficient for commission of that lesser offense that is necessarily

  established by establishing the statutory elements of a greater

  offense constitutes an included offense.” Rock, ¶ 16.

                          2.   Offenses At Issue

¶ 13   As charged here, first degree arson requires proof that the

  defendant (1) knowingly; (2) set fire to, burned, or caused to be

  burned; (3) any building or occupied structure; (4) of another;

  (5) without that person’s consent. § 18-4-102(1), C.R.S. 2017.

¶ 14   As charged here, criminal mischief requires proof that the

  defendant (1) knowingly; (2) damaged; (3) the real or personal

  property; (4) of one or more other persons, including property

  owned by the defendant jointly with another person or property

  owned by the defendant in which another person had a possessory

  or proprietary interest; (5) in the course of a single criminal episode.

  § 18-4-501(1), C.R.S. 2017; § 18-4-501(1), C.R.S. 2012.2



  2 The 2017 statute differs somewhat from the 2012 version in effect
  at the time of Welborne’s offenses, but not as to the elements set
  forth above. The 2017 version restructures and revises the

                                     7
                      3.   Applying Rock and Page

¶ 15   Criminal mischief can be committed in multiple ways, not all

  of which are included in first degree arson. For instance, if a

  defendant knowingly damages another person’s car, the defendant

  commits criminal mischief but the conduct does not support the

  first degree arson offense. When a defendant knowingly burns

  another person’s building or occupied structure without that

  person’s consent, however, the defendant commits both criminal

  mischief and first degree arson.

¶ 16   In the latter scenario, criminal mischief is included in first

  degree arson. On this point, Rock is particularly illuminating.

  There, the supreme court held that, when the charges are based on

  the same conduct, second degree trespass is a lesser included

  offense of second degree burglary. See Rock, ¶¶ 17-20. The court

  explained that a person can commit trespass in multiple ways —

  only one of which involves unlawfully entering another’s building or

  occupied structure, a requirement of burglary. Still, the court held

  that trespass was included in burglary in that case because both



  aggregate damage amounts relevant to enhancing criminal mischief
  from a misdemeanor to a felony. See § 18-4-501(4), C.R.S. 2017.

                                     8
  offenses were based upon the defendant’s unlawfully entering

  another’s building or occupied structure. Id. at ¶¶ 4, 20. Under

  parallel analysis, criminal mischief involving damage to another’s

  building or occupied structure is included in first degree arson

  involving burning the same building or occupied structure.

¶ 17   The People think not, however. In response to our order for

  supplemental briefs addressing Rock and Page, the People point out

  that the criminal mischief statute requires all the acts to occur “in

  the course of a single criminal episode.” § 18-4-501(1), C.R.S.

  2017. Because the first degree arson statute does not express this

  “single criminal episode” element, the People maintain that criminal

  mischief requires an element that first degree arson does not.

  Under this theory, then, mischief would not be included in first

  degree arson. See Page, ¶ 13; Reyna-Abarca, ¶ 60. The People’s

  position reflects our previous analysis of the issue. See Welborne,

  ¶ 59.3 The supreme court vacated our decision, however, and

  ordered us to reconsider it in light of Rock and Page. Looking to

  3 We explained that “[b]ecause we must apply the strict elements
  test . . . , we are loath to look beyond the elements expressed in the
  first degree arson statute by theorizing that a ‘single criminal
  episode’ element is necessarily implicit in the first degree arson
  offense.” Welborne, ¶ 59 n.5.

                                     9
  those cases, we see that Page lights the path to a different

  conclusion.

¶ 18   In Page, ¶¶ 15-19, the court held that establishing sexual

  assault by means of penetration necessarily establishes unlawful

  sexual contact. The court first noted that the sexual assault statute

  does not explicitly require that the defendant knew the victim did

  not consent, unlike the unlawful sexual contact statute. Id. at ¶ 17.

  Yet, the court decided that, because the sexual assault offense

  requires proof that the defendant caused the victim’s submission,

  the sexual assault offense “[b]y its very nature” requires the

  defendant’s knowledge that the victim did not consent. Id.

  (emphasis added). “Therefore, although the unlawful sexual contact

  statute expressly requires a showing of nonconsent whereas the

  sexual assault statute does not, the two offenses are legally

  indistinguishable regarding consent.” Id.

¶ 19   Additionally, the Page court found insignificant that “[t]he

  unlawful sexual contact statute expressly requires that the

  defendant act with a sexual purpose while the sexual assault by

  means of penetration statute does not.” Id. at ¶ 18. The court

  decided that “[l]ogically, sexual penetration as defined by statute


                                    10
  cannot be committed without a sexual purpose.” Id. Because the

  acts constituting penetration pursuant to the statute “inherently

  have a sexual purpose,” the court resolved that “it would be

  redundant for the General Assembly to expressly require such a

  purpose.” Id. (emphasis added).

¶ 20   Applying this approach, we conclude that first degree arson,

  by its very nature, occurs in a single criminal episode — an element

  of criminal mischief. “Single criminal episode” means essentially

  the same thing as “same criminal episode.” People v. Thoro Prods.

  Co., 45 P.3d 737, 745 (Colo. App. 2001), aff’d, 70 P.3d 1188 (Colo.

  2003). Such an episode includes “acts that are committed

  simultaneously or close in sequence, occur in the same place or

  closely related places, and form part of a schematic whole.” Id.

  “Acts arising from the same criminal episode include offenses

  arising from the same conduct of the defendant or offenses

  connected in such a manner that prosecution of the offenses

  involves substantially interrelated proof.” Id.

¶ 21   The People have not identified any set of facts, nor can we

  conceive of any, in which a single first degree arson would not take

  place in a single criminal episode. So, the single criminal episode


                                    11
  requirement is inherent in the elements of the first degree arson

  statute. Regarding the single criminal episode requirement, first

  degree arson and criminal mischief are legally indistinguishable.4

  As a result, establishing the elements of first degree arson

  necessarily establishes the elements of criminal mischief.

¶ 22   Given all this, where, as here, criminal mischief is founded on

  the same conduct showing first degree arson, criminal mischief is

  included in first degree arson. The failure to merge Welborne’s

  criminal mischief conviction into his first degree arson conviction

  was error. See Page, ¶¶ 9, 19. We now consider whether it was

  plain error. See People v. Rediger, 2018 CO 32, ¶ 48 (identifying

  elements of plain error).

¶ 23   In Reyna-Abarca, ¶¶ 81-82, the supreme court opined that,

  when a defendant’s double jeopardy rights are violated for failure to

  merge a lesser included offense into a greater offense, the error

  typically constitutes plain error requiring a remedy. Because the


  4 The purpose of expressing the single criminal episode requirement
  in the criminal mischief statute appears to be to define the period
  over which the amount of the damage caused may be aggregated;
  that amount sets the felony or misdemeanor level. § 18-4-501(4).
  There is no need to express this requirement in the first degree
  arson statute because the offense is always a class 3 felony.

                                    12
  People there “presented no compelling arguments as to why any

  double jeopardy errors that may have been committed . . . did not

  rise to the level of plain error,” the court concluded that the

  conviction for the included offense could not stand. Id. at ¶¶ 82-83.

¶ 24   In contrast, in Scott v. People, 2017 CO 16, ¶¶ 14-18 —

  announced the same day as Reyna-Abarca — the supreme court

  concluded that the failure to merge the putative lesser included

  offense into the greater offense was not plain error. Unlike in

  Reyna-Abarca, the court in Scott discerned a compelling reason why

  the double jeopardy claim did not show plain error: a division of

  this court had previously rejected the defendant’s precise claim in a

  decision announced before his trial. See Scott, ¶ 18. The Scott

  court explained, “[W]e cannot say that it was obvious error for the

  trial court to have acted consistently with that [earlier court of

  appeals] case.” Id.; see also Wambolt, ¶¶ 55-56, 70-71 (holding that

  the failure to merge the lesser included offense into the greater

  offense was not obvious error, and thus not plain error, because at

  the time of trial there were conflicting appellate decisions on the

  issue).




                                     13
¶ 25   This case resembles Reyna-Abarca because the People have

  not presented compelling reasons why the double jeopardy violation

  here was not plain error. No appellate decision announced at the

  time of Welborne’s trial had rejected the double jeopardy claim he

  raises on appeal. Following Reyna-Abarca, therefore, we conclude

  that the failure to merge the convictions was plain error.

                         III.     Conclusion

¶ 26   Welborne’s criminal mischief conviction and sentence are

  vacated. The judgment is affirmed in all other respects. We

  remand for the trial court to amend the mittimus accordingly.

       JUDGE HAWTHORNE and JUDGE DUNN concur.




                                    14
