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People v. Welborne

Court of Appeals of Colorado, Fifth Division

September 6, 2018

The People of the State of Colorado, Plaintiff-Appellee,
v.
Christopher Wesley Welborne, Defendant-Appellant.

          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 Plaintiff-Appellee

          Nicole M. Mooney, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant

          OPINION

          NAVARRO JUDGE

         ¶ 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 June 11, 2018) (unpublished order).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 Page.

         ¶ 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.[1] 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.

         II. Is 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.

         A. 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 ...


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