COLORADO COURT OF APPEALS                                     2017COA105


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


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Christopher Wesley Welborne,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

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

                         Announced August 10, 2017


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

 affirm. In doing so, we hold — for the first time in a reported

 decision — that criminal mischief is not an included offense of first

 degree arson. See infra Part V.

                I.    Factual and Procedural History

¶2    The prosecution alleged that Welborne and his mother, Kellie

 Lawson, set fire to the house in which they lived and then filed false

 insurance claims based on the fire. Welborne and Lawson were

 tried together, and the prosecution presented evidence of the

 following.

¶3    Welborne rented a house with Lawson, his then girlfriend J.K.,

 and other family members. In April 2012, Welborne and Lawson

 purchased renters insurance and automobile insurance policies.

 The renters insurance covered losses up to $350,000. The

 insurance agent had never seen a renters policy with such high

 coverage.

¶4    In August 2012, the insurance company notified Welborne and

 Lawson that it did not plan to renew the renters policy upon


                                   1
 expiration in October 2012 because an adjustor had seen a large

 snake on the premises, contrary to a policy provision. The

 insurance agent was also suspicious of Welborne and Lawson due

 to the agent’s past interactions with them,1 and the agent asked a

 company underwriter if the company could cancel their policy

 before the expiration date. The agent told the underwriter he feared

 that, if the company did not cancel the policy, the “house is going to

 burn down.” But the policy remained in place.

¶5      On August 27, 2012, the house in which Welborne and

 Lawson lived was set on fire. On that day, the occupants went on a

 picnic shortly before the fire started. Multiple sources of ignition

 were found, and all accidental causes were eliminated. Experts

 concluded that someone intentionally started the fire with an open-

 flame source that was removed from the scene when the fire

 started.

¶6      Before the day of the fire, Lawson said multiple times in front

 of many people that she wished the house would burn down so the

 family could start again. J.K. observed Lawson searching the



 1   We discuss some of these interactions in Part II of this opinion.

                                      2
 Internet to learn methods by which a fire could start in a home

 without someone being there.

¶7    Welborne used “pyroman876” as an online username and as

 part of his e-mail address, and he chose faces created out of flames

 for his profile picture on Facebook. J.K. heard Welborne agree that

 burning down the house would be a good idea, and she heard him

 talking with Lawson about how a fire could be started by placing a

 scarf soaked in rubbing alcohol on an over-wattage bulb in a lamp.

 J.K. was so concerned about those statements that she discussed

 them with her mother. Her mother told J.K.’s sister about those

 concerns; after the fire, the sister advised authorities that the fire

 had been set intentionally.

¶8    Shortly after the fire, Welborne and Lawson filed an insurance

 claim based on allegedly destroyed personal items. They created a

 140-page list of over 2800 items, seeking reimbursement for

 $443,626. An inventory of the house, however, revealed only 816

 items, valued at $102,358. For example, although Welborne

 claimed that the fire had destroyed an electric wheelchair, fire

 investigators found the chair in a neighbor’s garage. And




                                    3
  investigators could not find some allegedly burned computers; their

  remnants should have been in the house.

¶9     J.K. was with Welborne when he completed the insurance

  claim. She saw him list items that he had never possessed or that

  had not been lost, including a laptop that he had actually taken to

  the picnic. When she questioned him, he said that he deserved a

  new laptop.

¶ 10   After living with Welborne in a hotel for a few months, J.K.

  moved to California. He visited her. She advised him that, if he

  wished to salvage their relationship, he must list his lies to her. On

  this list, Welborne admitted that he and his mother had set the fire.

  He also admitted that earlier insurance claims had been fraudulent.

  He then burned the list, telling J.K. that he would not let her use it

  as evidence against him.

¶ 11   Welborne claimed that the house had many electrical

  problems, but J.K. and the homeowner said they were aware only of

  a problem with a dimmer switch. Investigators eliminated the

  electrical system as the cause of the fire.

¶ 12   Lawson also denied starting the fire. She volunteered that she

  had spilled rubbing alcohol on her bedroom carpet, used rags to


                                     4
  clean it up, and thrown the rags in a corner by a lamp. The lamp

  had a 200-watt bulb, far exceeding the recommended maximum of

  60 watts. But investigators eliminated the alcohol-soaked rags

  thrown on the base of the lamp as the fire’s cause.

¶ 13   The fire caused $285,224 of damage to the house. Before

  ultimately denying their claim, the insurance company paid

  Welborne and Lawson $72,468 for temporary living expenses and

  for some of the allegedly lost personal items.

¶ 14   The jury convicted Welborne and Lawson as charged. The trial

  court sentenced Welborne to six years in prison for arson, six years

  for criminal mischief, six years for attempted theft, and eight years

  for theft — all to be served concurrently. He directly appeals the

  judgment. (Lawson is not a party to this appeal.)

                   II.     Earlier Insurance Claims

¶ 15   Welborne contends that the trial court erred by admitting

  evidence of his earlier insurance claims to the same company. He

  is mistaken.

             A.    Relevant Factual and Procedural History

¶ 16   Around August 2011, Welborne and Lawson purchased

  insurance policies for multiple vehicles and a renters insurance


                                    5
  policy. Around December 2011, Welborne and Lawson filed an

  insurance claim alleging that many items had been stolen from

  their house. Police, however, could not find any signs of forced

  entry or any other evidence of a burglary. Welborne and Lawson

  could not provide receipts or other proof to support some claims.

  Lawson repeatedly increased the alleged value of the items taken

  each time she talked to the insurance agent. Still, the insurance

  company paid them approximately $30,000. Welborne told J.K.

  that the items had not been stolen and that he and Lawson had

  committed insurance fraud.

¶ 17   Later, the family’s van was found crashed in a field with the

  keys in the ignition. Welborne and Lawson claimed that the van

  had been stolen, and they filed an insurance claim. According to

  the investigating officer, the van was worth $2324. Lawson

  asserted that the value should be increased because of recent work

  on the van, but she could not provide proof of such work. Yet, the

  insurance company paid them approximately $6000. Welborne told

  J.K. that the van had not been stolen and that he and Lawson had

  crashed it so they could get a new one.




                                    6
¶ 18   In July 2012, Lawson asserted that the house had been

  burglarized again and the burglar had stolen a samurai sword.

  J.K., however, had never seen a sword in the house. Once again,

  police did not find signs of forced entry or other evidence of a

  burglary. The insurance agent advised Lawson that the insurance

  company would look hard at another questionable claim. Welborne

  and Lawson ultimately dropped this claim.

¶ 19   The prosecutor moved to admit evidence of these prior

  insurance claims under CRE 404(b) and as res gestae evidence.

  The prosecutor argued that this evidence showed motive or intent,

  lack of accident or mistake, and common plan and preparation.

  The trial court agreed and admitted the evidence at trial, with

  limiting instructions.

                           B.   Standard of Review

¶ 20   A trial court has “substantial discretion when deciding

  whether to admit evidence of other acts.” People v. Jones, 2013 CO

  59, ¶ 11 (citation omitted). We will not disturb the court’s ruling

  unless it is manifestly arbitrary, unreasonable, or unfair. People v.

  Rath, 44 P.3d 1033, 1043 (Colo. 2002). The parties agree that

  Welborne preserved this issue.


                                      7
                                C.    Analysis

¶ 21   Rule 404(b) provides that, although evidence of other acts is

  not admissible if its relevance depends entirely on the inference that

  the actor has a bad character and acted in conformity with that

  character, such evidence may be admissible for other purposes.

  See CRE 404(b) (listing, for example, proof of motive, intent,

  preparation, plan, and absence of mistake or accident); see also

  Jones, ¶ 12. To assess whether evidence satisfies Rule 404(b), a

  trial court must apply the four-part test articulated in People v.

  Spoto, 795 P.2d 1314, 1318 (Colo. 1990). This test allows

  admission of the evidence if (1) it relates to a material fact; (2) it is

  logically relevant to showing that fact; (3) the logical relevance is

  independent of the inference that the defendant committed the

  crime charged because of the likelihood that he acted in conformity

  with his bad character; and (4) the probative value is not

  substantially outweighed by the danger of unfair prejudice. Id.; see

  CRE 403.

¶ 22   Welborne contends that the trial court abused its discretion

  because the evidence of his prior insurance claims did not relate to

  a material fact, was not logically relevant to the charges, and


                                       8
  therefore was not probative of anything other than to show his bad

  character. As to these first three Spoto prongs, he argues only that

  “[w]hether the defendants made false insurance claims [was] not

  material to whether the defendants intentionally set the fire” and

  “[n]one of the charges in this case were related to fraud.”

¶ 23   We disagree because the attempted theft and theft charges

  were grounded in Welborne’s false insurance claims following the

  fire. The prosecution had to prove that he knowingly took a

  substantial step toward obtaining and actually obtained insurance

  money by deception, and that he intended to permanently deprive

  the insurance company of the money. §§ 18-2-101(1),

  18-4-401(1)(a), C.R.S. 2016. According to the prosecution,

  Welborne falsely claimed that certain personal property was

  destroyed in the fire in order to deceive the insurance company into

  paying him money under the renters policy.

¶ 24   So, the prior false insurance claims involving the same

  company related to a material fact and were logically relevant to the

  charges. See Yusem v. People, 210 P.3d 458, 464 (Colo. 2009)

  (recognizing that whether the defendant’s actions were mistaken or

  purposeful was related to the defendant’s mental state); Rath, 44


                                     9
  P.3d at 1043 (recognizing that other-act evidence shared common

  elements with charged offenses that tended to show the charged

  acts were “directed or purposive rather than coincidental”); People v.

  Delgado, 890 P.2d 141, 143 (Colo. App. 1994) (noting that a

  common plan can be shown by acts that have “a nexus or

  relationship with each other” and “it is not necessary that there be

  any substantial similarity between the acts”).

¶ 25   For similar reasons, the other-act evidence had probative

  value outside of any improper inference. “Because all evidence of

  other bad acts could support a propensity inference, Spoto ‘does not

  demand the absence of the inference’ but ‘merely requires that the

  proffered evidence be logically relevant independent of that

  inference.’” People v. McBride, 228 P.3d 216, 227 (Colo. App. 2009)

  (citation omitted). The evidence here was not relevant merely to

  prove Welborne’s character but also to show a common plan and

  preparation, lack of accident or mistake, and his motive and intent.

  See Rath, 44 P.3d at 1041 (“The inference relied on arises not from

  the criminal character of the accused but from the demonstration of

  his pattern of using a particular technique to accomplish a

  particular end.”).


                                   10
¶ 26   As to Spoto’s fourth prong, because Rule 403 strongly favors

  the admission of relevant evidence, we must afford other-act

  evidence the maximum probative value attributable to it by a

  reasonable fact finder and the minimum unfair prejudice to be

  reasonably expected. Rath, 44 P.3d at 1043. Evidence that

  strengthens the prosecution’s case necessarily poses some

  disadvantage to the accused. People v. Garner, 806 P.2d 366, 375

  (Colo. 1991). But unfair prejudice does not result from the

  evidence’s legitimate probative force. Rath, 44 P.3d at 1043.

¶ 27   Evidence of Welborne’s false but fruitful insurance claims was

  highly probative of whether he acted to deceive the same insurance

  company with the intent to permanently deprive it of money. And

  the trial court repeatedly instructed the jury on the limited

  purposes of the evidence, which mitigated the potential for unfair

  prejudice because we assume the jury heeded the instructions

  absent contrary signs. People v. Garcia, 2012 COA 79, ¶ 20.

¶ 28   As a result, the trial court did not abuse its broad discretion.




                                    11
           III.     Welborne’s California Theft Conviction

¶ 29   Welborne contends that the trial court committed reversible

  error by permitting the prosecutor to impeach him with his

  California theft conviction. We disagree.

                         A.    Relevant History

¶ 30   Welborne elected to testify at trial. Before cross-examination,

  the prosecutor announced the intent to impeach Welborne with a

  California felony theft conviction, pursuant to section 13-90-101,

  C.R.S. 2016. Defense counsel acknowledged that Welborne had

  been convicted of felony theft in California, but counsel provided

  documents showing that Welborne had successfully petitioned a

  California court to reduce the conviction to a misdemeanor

  pursuant to California law. Defense counsel argued that the

  conviction could not be used to impeach Welborne because it was

  no longer a felony.

¶ 31   The trial court agreed that the conviction was no longer a

  felony. Relying on People v. Segovia, 196 P.3d 1126, 1132 (Colo.

  2008), however, the court found the conviction admissible to

  impeach Welborne’s credibility under CRE 608(b) because theft is

  probative of truthfulness or dishonesty.


                                   12
¶ 32   In front of the jury, the prosecutor asked Welborne one

  question regarding the earlier offense: “And you have a prior

  misdemeanor theft conviction in California, don’t you?” Welborne

  answered, “Fourteen years ago.” The trial court instructed the jury

  to consider this evidence only to assess Welborne’s credibility.

                        B.    Standard of Review

¶ 33   As noted, trial courts possess considerable discretion in

  deciding evidentiary matters. Segovia, 196 P.3d at 1129. Because

  Welborne objected to admission of the evidence on

  non-constitutional grounds, we review the alleged error for

  harmlessness. Yusem, 210 P.3d at 469; see also People v. Kraemer,

  795 P.2d 1371, 1377 (Colo. App. 1990) (analyzing erroneous

  admission of CRE 608(b) evidence for harmlessness).

                              C.   Analysis

¶ 34   Rule 608(b) permits cross-examination into specific instances

  of conduct that are probative of a witness’s character for

  truthfulness or untruthfulness. Only the underlying circumstances

  surrounding the conduct — not the fact of a criminal conviction

  itself — are admissible under the rule. See Segovia, 196 P.3d at




                                    13
  1132; People v. Drake, 748 P.2d 1237, 1246 (Colo. 1988); People v.

  Garcia, 17 P.3d 820, 829 (Colo. App. 2000).

¶ 35   The trial court acted well within its discretion in admitting

  evidence of Welborne’s prior theft offense under Rule 608(b)

  because “theft is probative of truthfulness or dishonesty.” Segovia,

  196 P.3d at 1132. Welborne asks us to “re-examine” the supreme

  court’s holding in Segovia, but we lack such authority. See People

  v. Al-Turki, 2017 COA 39, ¶ 12 n.2. Also, contrary to his claim that

  the trial court admitted the evidence “carte blanche” (i.e., without

  recognizing its discretion to either admit or exclude the evidence),

  the court explicitly recognized its discretion to make this decision.

¶ 36   But Welborne is right that the trial court should not have

  permitted the prosecutor to elicit the fact of his conviction because

  only the facts underlying it were admissible. See, e.g., Segovia, 196

  P.3d at 1132. No reasonable probability exists, however, that this

  error prejudiced him. As defense counsel recognized, the

  underlying facts of his California theft supported a conviction for a

  felony offense. The jury heard, however, only the fact of a

  misdemeanor conviction, not the facts of the felony-level offense.

  Hence, the jury received evidence less prejudicial to Welborne,


                                    14
  perhaps, than Rule 608 permits. Further, the entire inquiry into

  the earlier offense was limited to a single question during a lengthy

  trial, and the court instructed the jury to consider the evidence for a

  limited purpose only. Finally, the evidence of Welborne’s guilt was

  profuse.

¶ 37   Consequently, the error in admitting the fact of the

  misdemeanor conviction was surely harmless. See People v. Casias,

  2012 COA 117, ¶ 68 (concluding that improperly admitted other-act

  evidence was harmless where it did not play a significant role in the

  case and the volume of properly admitted evidence dwarfed the

  improperly admitted evidence).2 Because the trial court’s admission


  2 To the extent Welborne contends — for the first time on appeal —
  that the trial court’s ruling burdened his “constitutional right to
  testify,” we do not detect plain error. The ruling did not preclude
  him from testifying, and he testified freely. See also People v.
  Henry, 195 Colo. 309, 315, 578 P.2d 1041, 1045 (1978) (holding
  that permitting the prosecution to impeach a defendant with prior
  convictions does not impermissibly burden his right to testify).
  Further, while Welborne notes that he was not expressly advised
  that he could be impeached under CRE 608(b) with the
  circumstances of a misdemeanor conviction, he does not assert that
  he would have made a different decision about whether to testify if
  he had been so advised. Cf. People v. Emert, 240 P.3d 514, 518-19
  (Colo. App. 2010) (recognizing that, when a defendant is
  misinformed by the trial court about the consequences of his
  decision to testify, he may obtain relief only if he demonstrates
  detrimental reliance on the misleading advisement).

                                    15
  of the evidence under CRE 608(b) does not require reversal, we need

  not address the People’s argument that Welborne’s California

  conviction remained a felony for purposes of section 13-90-101.

         IV.        Welborne’s Proposed Impeachment Witness

¶ 38   According to Welborne, the trial court erred by barring him

  from calling a witness, G.S., to impeach the testimony of J.K., his

  former girlfriend. The record does not reveal reversible error.

               A.    Relevant Factual and Procedural History

¶ 39   The trial court ordered the parties to disclose witnesses well

  before trial. The defense did not disclose G.S.

¶ 40   During J.K.’s testimony, defense counsel did not ask her

  about G.S. Counsel did not object to releasing J.K. from her

  subpoena after her testimony, and she flew home to California the

  next day as planned.

¶ 41   Two days after J.K.’s testimony, defense counsel requested

  permission to call G.S. to impeach J.K. Counsel represented that

  G.S. had been present for the California meeting in which,

  according to J.K., Welborne had confessed to setting the fire.

  Counsel said that G.S. would testify “regarding what she observed

  at the meeting” as well as to “some things [J.K.] said.” Counsel


                                    16
  explained that G.S. would not testify to “new unknown information”

  and that Welborne would “probably address the same items” in his

  testimony. Counsel conceded that he had not disclosed G.S. to the

  prosecution. He also admitted that he had received the

  prosecution’s disclosures about J.K.’s testimony well before trial.

  While defense counsel suggested that the prosecution’s latest

  synopsis of J.K.’s expected testimony (provided at the start of trial)

  “added additional information about” her, defense counsel did not

  identify any such new information.

¶ 42   The prosecutor objected, arguing that the endorsement was

  untimely, J.K.’s testimony had been known to the defense since the

  charges were filed, J.K. could not be recalled to respond to G.S.’s

  testimony because J.K. had left the state, and the prosecution could

  have extended J.K.’s stay if the defense had revealed G.S. earlier.

  The prosecutor also voiced concern that (1) G.S.’s testimony would

  be hearsay if she testified about conversations she had overheard

  between J.K. and Welborne; and (2) the defense had not laid a

  proper foundation to impeach J.K.’s testimony under section

  16-10-201, C.R.S. 2016, or CRE 613. Defense counsel did not

  respond to these hearsay and foundational concerns.


                                    17
¶ 43   The trial court decided that G.S. could not testify because the

  defense had not timely disclosed her per Crim. P. 16(II)(c) and the

  pretrial order, and the defense had not shown good cause for failing

  to disclose her earlier — especially given that the prosecution had

  disclosed J.K.’s testimony long before trial. The court also

  expressed its “very serious concern” about whether G.S.’s testimony

  would be admissible in light of its apparent hearsay nature and the

  absence of a proper foundation.

                              B.    Analysis

¶ 44   Welborne maintains that the trial court erred by excluding

  G.S.’s testimony because the defense did not violate any rule and

  the court did not adequately consider the factors outlined in People

  v. Pronovost, 773 P.2d 555 (Colo. 1989). The People answer that

  Welborne did not provide an offer of proof sufficient to permit us to

  reverse the court’s ruling. The People are right.

¶ 45   Under CRE 103(a), “error may not be predicated upon a ruling

  that excludes evidence unless a substantial right of the proponent

  is affected and the substance of the evidence is made known to the

  court by offer of proof or is apparent from the context within which

  questions were asked.” People v. Saiz, 32 P.3d 441, 446-47 (Colo.


                                    18
  2001). “This offer of proof must demonstrate that evidence is

  admissible as well as relevant to the issues in the case.” Melton v.

  Larrabee, 832 P.2d 1069, 1071 (Colo. App. 1992). “The offer must

  sufficiently apprise the trial court of the nature and substance of

  the testimony to enable it to exercise its discretion pursuant to the

  rules of evidence, and it must establish a basis in the record for

  appellate review of the trial court’s ultimate ruling.” Saiz, 32 P.3d

  at 447.

¶ 46   Defense counsel, despite the trial court’s requests for more

  detail, offered only that G.S. was present during the California

  meeting between J.K. and Welborne and that G.S. would “impeach

  some of the testimony put forth by J.K.” Counsel did not identify

  which parts of J.K.’s testimony G.S. would impeach. For instance,

  counsel did not assert that G.S. would contradict J.K.’s testimony

  that Welborne had confessed to setting the fire or to filing false

  insurance claims. Nor did defense counsel explain how the defense

  could overcome the hearsay and foundational concerns flagged by

  the prosecutor and shared by the court. Instead, defense counsel

  said that G.S.’s testimony would be cumulative of Welborne’s

  expected testimony (although counsel did not elaborate).


                                    19
¶ 47   Arguably, this offer of proof was so limited as to justify the

  trial court’s ruling on the basis that the offer did not satisfy CRE

  103(a)(2) (i.e., the substance of the evidence was not adequately

  made known to the court). In any event, the sparse offer of proof

  does not show that the court’s ruling affected a “substantial right of

  [a] party.” CRE 103(a); see Saiz, 32 P.3d at 447-48 (concluding that

  the trial court properly excluded videotaped statement where the

  offer of proof was relatively limited in nature, solely for

  impeachment, and not alleged to be different or more probative

  than other related testimony); id. at 448 (“A trial court also cannot

  be considered to have abused its discretion in excluding logically

  relevant evidence as needlessly cumulative unless its decision,

  under the circumstances, was manifestly arbitrary, unreasonable,

  or unfair.”); cf. People v. Brown, 2014 COA 155M-2, ¶ 6 (“[A]

  defendant’s right to present a defense is violated ‘only where the

  defendant was denied virtually his only means of effectively testing

  significant prosecution evidence.’”) (alteration and citation omitted).

  For the same reason, we cannot conclude that the court’s ruling

  prejudiced Welborne even if we assume (without deciding) that

  constitutional harmless error analysis applies. See Hagos v. People,


                                     20
  2012 CO 63, ¶ 11 (describing review of errors of constitutional

  dimension).

¶ 48   As discussed, the offer of proof did not show that G.S.’s

  testimony was admissible or that she would impeach J.K.’s

  testimony that Welborne had confessed to starting the fire. See

  Saiz, 32 P.3d at 449 (explaining that, where “the defense never

  specified the statements that would appear on the tape or asked the

  court to view the videotape,” excluding the tape did not prejudice

  the defendant’s constitutional rights). And Welborne himself later

  contradicted J.K.’s account. See People v. Hoover, 165 P.3d 784,

  796 (Colo. App. 2006) (finding the erroneous exclusion of state-of-

  mind evidence to be harmless where the record showed that the

  defendant was able to provide substantial testimony concerning his

  state of mind); cf. Vega v. People, 893 P.2d 107, 120 (Colo. 1995)

  (holding constitutional error in precluding cross-examination into

  incentive program for Drug Enforcement Administration agents was

  harmless beyond a reasonable doubt where other evidence revealed

  the agents’ bias toward obtaining convictions for drug-related

  offenses).




                                   21
¶ 49   Finally, the evidence of Welborne’s guilt was abundant.

  Indeed, J.K. testified to Welborne’s inculpatory conversations that

  G.S. could not have overheard (e.g., those between Welborne and

  Lawson about how to set a house fire). For all these reasons, any

  error was harmless beyond a reasonable doubt.

                             V.     Merger

¶ 50   Welborne contends that criminal mischief is an included

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

  merge. His contention finds support in People v. Abeyta, 541 P.2d

  333, 335 (Colo. App. 1975) (not published pursuant to C.A.R. 35(f)).

  We decline to apply Abeyta, however, because it conflicts with both

  the controlling law at the time it was issued and the supreme

  court’s recent clarification of the applicable test for evaluating when

  one offense is included in another. See Reyna-Abarca v. People,

  2017 CO 15, ¶¶ 59-66. Welborne’s claim fails the governing test.

                        A.    Standard of Review

¶ 51   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




                                    22
  this issue, we may reverse only if plain error occurred.

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

                              B.    Analysis

¶ 52   If one offense is included in another offense, a defendant may

  not be convicted of both. § 18-1-408(1)(a), C.R.S. 2016. 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. Our supreme court has

  consistently held that this statute requires a “statutory elements” or

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

  two criminal statutes rather than the specific evidence used to

  sustain the charges. Reyna-Abarca, ¶ 53; People v. Rivera, 186

  Colo. 24, 27-28, 525 P.2d 431, 433-34 (1974).

¶ 53   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. 2016; cf.

  COLJI-Crim. 4-1:01 (2016). As charged here, criminal mischief

  requires proof that the defendant (1) knowingly; (2) damaged; (3) the


                                    23
  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, at the time of

  the damage, another person had a possessory or propriety interest;

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

  2016; § 18-4-501(1), C.R.S. 2012; cf. COLJI-Crim. 4-5:01 (2016).3

                        1.   Before Reyna-Abarca

¶ 54   In Abeyta, 541 P.2d at 335, the division opined that criminal

  mischief is a lesser included offense of first degree arson. Other

  than the requisite mental state, the statutory elements of both

  offenses then were substantially the same as those in 2012 and

  2016. See id. (stating that both 1973 statutes required mental state

  of “intentionally”). Citing Rivera’s statutory elements test, the

  Abeyta division decided, with little discussion, that “the essential

  elements of [criminal mischief] are necessarily proven if the

  elements of [first degree arson] are present.” Id.



  3 The 2016 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 2016 version restructures and revises the
  aggregate damage amounts relevant to enhancing criminal mischief
  from a misdemeanor to a felony. See § 18-4-501(4), C.R.S. 2016.

                                    24
¶ 55   The Abeyta division was mistaken because criminal mischief

  required an element that first degree arson did not. As it did in

  2012 and does today, the criminal mischief statute in Abeyta

  applied only if the charged acts occurred “in the course of a single

  criminal episode.” Id. (quoting section 18-4-501, C.R.S. 1973); see

  People v. Thoro Prods. Co., 45 P.3d 737, 745 (Colo. App. 2001)

  (describing the “single criminal episode” language of section

  18-4-501 as an element of the offense), aff’d, 70 P.3d 1188 (Colo.

  2003). In other words, the criminal mischief statute has always

  required proof that the defendant committed the acts in the course

  of a single criminal episode. See also COLJI-Crim. 4-5:01 cmt. 3

  (2016) (explaining that Thoro Products recognized “the ‘single

  criminal episode’ language of section 18-4-501 as establishing an

  element of the offense”).4 The first degree arson statute has never

  set forth such an element.


  4 The 2016 model instructions had not been issued at the time of
  Welborne’s offenses. Still, those instructions are informative
  because they interpret relevant statutory language that was in effect
  at the time of his offenses. See § 18-4-501(1), C.R.S. 2012; People
  v. Morales, 2014 COA 129, ¶ 42 (recognizing that model
  instructions, while not binding, are intended as guidelines and
  should be considered by courts); People v. Romero, 197 P.3d 302,
  309 (Colo. App. 2008) (Pattern jury instructions “carry weight and

                                    25
¶ 56   Accordingly, Abeyta was wrongly decided at the time.

                        2.    After Reyna-Abarca

¶ 57   Under the supreme court’s new formulation 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 the elements of the greater offense.” We

  asked the parties to brief Reyna-Abarca’s effect on Abeyta.

¶ 58   Welborne, noting that Reyna-Abarca did not expressly overrule

  Abeyta and arguing that the cases apply the same strict elements

  test, contends that Reyna-Abarca does not contradict Abeyta. True,

  the Reyna-Abarca court did not mention Abeyta. Even so, the

  reasoning of Reyna-Abarca confirms that Abeyta was wrong.

¶ 59   Just as under the former test, under the Reyna-Abarca test

  “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).

  should be considered by the court.” (citing People v. Armstrong, 720
  P.2d 165, 168 (Colo. 1986))).


                                    26
  Because criminal mischief requires proof that the acts were

  committed in a single criminal episode — while first degree arson

  does not — criminal mischief is not an included offense of first

  degree arson under the Reyna-Abarca analysis.5

¶ 60   We are not persuaded otherwise by Welborne’s claim that

  criminal mischief is “necessarily included” in first degree arson

  because “it is impossible to commit first degree arson without also

  committing criminal mischief.” In Reyna-Abarca, ¶¶ 65-67, the

  court rejected such a test for identifying an included offense when

  the court disavowed Meads v. People, 78 P.3d 290 (Colo. 2003).

  Meads 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. The Reyna-Abarca court abandoned that

  former test and acknowledged that “the result in Meads would have


  5 Because we must apply the strict elements test (rather than an
  evidentiary 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. Cf. People v. Leske, 957 P.2d 1030, 1036-40
  (Colo. 1998) (rejecting the claim that the age disparity element of
  the sexual assault on a child offense is “jurisdictionally implicit” in
  the position of trust offense).

                                     27
  been different” under the new “clarified version of the strict

  elements test.” Id. at ¶ 67.

¶ 61   Indeed, the result in Reyna-Abarca would have been different

  under the version of the strict elements test used in Meads and

  advocated by Welborne. Reyna-Abarca considered, among other

  things, whether “DUI” is a lesser included offense of “vehicular

  assault-DUI.” Id. at ¶ 1. Because vehicular assault-DUI can be

  committed with a boat or a plane, whereas DUI can be committed

  only in a self-propelled vehicle that is designed primarily for travel

  on the public highways, it is possible to commit vehicular assault-

  DUI without also committing DUI. Id. at ¶ 75. Under Meads and

  Welborne’s approach, therefore, DUI would not be a lesser included

  offense of vehicular assault-DUI because proof of vehicular assault-

  DUI does not necessarily establish all the elements of DUI. See

  Meads, 78 P.3d at 295-96 (holding that, because the element of

  obtaining or exercising control over anything of value does not

  necessarily establish the element of obtaining or exercising control

  over a motor vehicle, second degree aggravated motor vehicle theft

  is not a lesser included offense of felony theft). But Reyna-Abarca




                                     28
  rebuffed that analysis and conclusion under its new test. Id. at

  ¶¶ 76-78. Likewise, we must reject Welborne’s contention.6

                         VI.       Conclusion

¶ 62   The judgment is affirmed.

       JUDGE HAWTHORNE and JUDGE DUNN concur.




  6Given our disposition, we need not address the People’s other
  arguments as to why criminal mischief is not included in first
  degree arson.

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