Larimer County District Court No. 13CR1167, Honorable Julie
Kunce Field, Judge
H. Coffman, Attorney General, Brock J. Swanson, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee.
M. Mooney, Alternate Defense Counsel, Denver, Colorado, for
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,
__ P.3d __, cert. granted in part, judgment vacated, and
case remanded, No. 17SC671, 2018 WL 2772787
(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 June 11, 2018) (unpublished order).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 Courts ruling in
Reyna-Abarca v. People, 2017 CO 15, 390 P.3d 816.
After our decision, however, the supreme court clarified
Reyna-Abarca in People v. Rock, 2017 CO 84,
402 P.3d 472, and Page v. People, 2017 CO 88, 402
P.3d 468. 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
2] Upon that reconsideration, we hold that
Welbornes 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 for the trial court
to amend the mittimus accordingly, and otherwise affirm the
Factual and Procedural History
3] Because our earlier opinion details the facts and
proceedings leading to Welbornes 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 mothers) 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.
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 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 courts decisions announced after Welbornes
trial — namely, Reyna-Abarca, Rock,
and Page — changed the landscape and require
the opposite conclusion. We ...