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Page v. People

Supreme Court of Colorado, En Banc

September 11, 2017

Jamey Robert Page, Petitioner
v.
The People of the State of Colorado. Respondent

         Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 10CA738

          Attorneys for Petitioner: Douglas K. Wilson, Public Defender Jason C. Middleton, Deputy Public Defender Denver, Colorado

          Attorneys for Respondent: Cynthia H. Coffman, Attorney General Nicole D. Wiggins, Assistant Attorney General Denver, Colorado

          JUSTICE GABRIEL does not participate.

          OPINION

          BOATRIGHT JUSTICE

          ¶1 We address whether a conviction for unlawful sexual contact involving an at-risk adult merges with a conviction for sexual assault involving an at-risk adult.[1] We conclude that it does. Hence, we reverse the court of appeals' judgment and remand this case to the court of appeals with instructions to return the case to the trial court to vacate the defendant's conviction for unlawful sexual contact.

         I. Facts and Procedural History

         ¶2 Petitioner Jamey Robert Page entered the home of an eighty-six-year-old woman late at night and sexually assaulted her. During the assault, the victim bit Page's tongue, causing him to bleed on her clothing. A DNA analysis of the victim's blood-stained clothing revealed that a mixture of DNA was present and that Page's DNA was the source of a major component. The People charged Page with several crimes related to the assault.

         ¶3 As relevant here, the jury found Page guilty of both sexual assault involving an at-risk adult and unlawful sexual contact involving an at-risk adult. The trial court sentenced Page to twenty-four years to life in the custody of the Department of Corrections on the sexual assault charge and eighteen months concurrently on the unlawful sexual contact charge.[2]

          ¶4 Page appealed his convictions to the court of appeals and argued, in part, that unlawful sexual contact is a lesser included offense of sexual assault, meaning his convictions must merge. The court of appeals disagreed, relying on another division's decision in People v. Loyas, 259 P.3d 505 (Colo.App. 2010). People v. Page, No. 10CA0738 (Colo.App. May 2, 2013). The Loyas court reasoned that unlawful sexual contact requires proof that the defendant acted with a sexual purpose, while sexual assault committed by means of penetration has no such requirement. 259 P.3d at 509- 10. The division below applied Loyas and concluded on this basis that sexual contact is not a lesser included offense of sexual assault when sexual assault is committed by means of penetration and, therefore, that Page's convictions for the offenses do not merge. Page, slip op. at 37.

         ¶5 We granted certiorari to consider whether convictions for unlawful sexual contact and sexual assault based on the same conduct merge. We now reverse.

         II. Standard of Review

         ¶6 Whether convictions for different offenses merge is a question of law that we review de novo. E.g., People v. Torres, 224 P.3d 268, 275 (Colo.App. 2009).

         III. ...


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