Larimer County District Court No. 13CR1167 Honorable Julie
Kunce Field, Judge
Cynthia H. Coffman, Attorney General, Brock J. Swanson,
Assistant Attorney General, Denver, Colorado, for
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,
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 June 11, 2018) (unpublished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
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 for the trial court to amend
the mittimus accordingly, and otherwise affirm the
judgment. 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.
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
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.
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. Re ...