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People v. Wagner

Court of Appeals of Colorado, First Division

May 17, 2018

The People of the State of Colorado, Plaintiff-Appellee,
v.
Ryan Austin Wagner, Defendant-Appellant.

          Arapahoe County District Court No. 14CR2454 Honorable Michelle A. Amico, Judge

          Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Douglas K. Wilson, Colorado State Public Defender, Joseph Paul Hough, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          TAUBMAN JUDGE

         ¶ 1 Defendant, Ryan Austin Wagner, appeals his judgment of conviction entered on a jury verdict finding him guilty of three counts of stalking. We remand for the trial court to merge his stalking convictions and correct the mittimus accordingly, but affirm in all other respects.

         I. Background

         ¶ 2 In May 2014, Wagner and the victim, his wife, separated. The victim moved in with another man she had been dating. For the next several months, Wagner repeatedly texted, called, and followed the victim and her boyfriend.

         ¶ 3 Wagner and the victim were divorced in September 2014. Shortly after the divorce was finalized, the victim disclosed Wagner's behavior to her supervisor after he made several calls to her workplace. After the victim reported his behavior, Wagner was arrested and charged with three counts of stalking - one count under each of subsections (a), (b), and (c) of section 18-3-602(1), C.R.S. 2017. A jury returned a guilty verdict on all counts.[1]

         ¶ 4 Wagner was sentenced to ninety days in jail on each count with all jail terms to run consecutively, and six years of probation on each count with all probation terms to run concurrently.

         ¶ 5 On appeal, Wagner argues that the trial court erred by (1) entering convictions unsupported by sufficient evidence and (2) rejecting a defense-tendered unanimity instruction or, in the alternative, failing to require the prosecution to elect which acts constituted credible threats. In their answer brief, the People conceded that two of Wagner's convictions - those charged under the credible threat subsections (a) and (b) - should have merged at sentencing.

         ¶ 6 After considering the People's concession, we requested supplemental briefing from Wagner and the People addressing whether all three of the stalking convictions should have merged at sentencing. Wagner asserted that, assuming his convictions were not vacated altogether, merger was appropriate. The People argued that the credible threat convictions should not merge with the serious emotional distress conviction under section 18-3-602(1)(c).

          ¶ 7 We conclude that Wagner's stalking convictions should have merged and therefore remand so that the trial court can vacate two of the counts. However, we reject Wagner's other contentions of error and therefore affirm in all other respects.

         II. Multiplicity

         ¶ 8 Although Wagner did not raise the issue before the trial court or on appeal, the People conceded in their answer brief that two of his stalking convictions should have merged at sentencing and we agree. We further conclude that Wagner's three stalking convictions should have merged and therefore remand for the trial court to vacate two of the convictions.

         A. Standard of Review

         ¶ 9 We review de novo whether merger applies to criminal offenses. People v. Zweygardt, 2012 COA 119, ¶ 40, 298 P.3d 1018. An unpreserved double jeopardy claim is reviewable for plain error. Reyna-Abarca v. People, 2017 CO 15, ¶¶ 45-46, 390 P.3d 816, 823. Plain errors are errors that are "obvious and substantial, " Hagos v. People, 2012 CO 63, ¶ 14, 288 P.3d 116, 120, and "cast serious doubt on the reliability of the judgment of conviction, " id. (quoting People v. Miller, 113 P.3d 743, 750 (Colo. 2005)).

         B. Applicable Law

         1. Stalking Statute

         ¶ 10 A person commits stalking if he or she knowingly

(a) Makes a credible threat to another person and, in connection with the threat, repeatedly follows, approaches, contacts, or places under surveillance that person . . .; or
(b) Makes a credible threat to another person and, in connection with the threat, repeatedly makes any form of communication with that person . . .; or
(c) Repeatedly follows, approaches, contacts, places under surveillance, or makes any form of communication with another person, a member of that person's immediate family, or someone with whom that person has or has had a continuing relationship in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person, a member of that person's immediate family, or ...

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