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Friend v. People

Supreme Court of Colorado, En Banc

November 13, 2018

Mark Alton Friend, Petitioner/Cross-Respondent
v.
The People of the State of Colorado, Respondent/Cross-Petitioner

          Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 09CA2536

          Attorneys for Petitioner/Cross-Respondent: Megan A. Ring, Colorado State Public Defender Jon W. Grevillius, Deputy State Public Defender Denver, Colorado

          Attorneys for Respondent/Cross-Petitioner: Cynthia H. Coffman, Attorney General Matthew S. Holman, First Assistant Attorney General Denver, Colorado

          OPINION

          GABRIEL JUSTICE

         ¶1 This case principally presents two double jeopardy questions: (1) whether the child abuse statute, section 18-6-401, C.R.S. (2018), prescribes more than one unit of prosecution and whether the prosecution presented sufficient evidence to establish that the defendant, Mark Alton Friend, committed more than one crime of child abuse and (2) whether child abuse resulting in death under sections 18-6-401(1)(a) and (7)(a)(1), is a lesser included offense of first-degree murder of a child under section 18-3-102(1)(f), C.R.S. (2018) ("child abuse murder").[1]

         ¶2 As to the first double jeopardy question presented here, applying the principles set forth in Schneider v. People, 2016 CO 70, ¶ 13, 382 P.3d 835, 839, and People v. Abiodun, 111 P.3d 462, 466-68 (Colo. 2005), we conclude that the division below correctly determined that section 18-6-401 creates one crime of child abuse that can be committed in alternative ways. The question thus becomes whether the prosecution proved separate counts of child abuse. We again agree with the division and conclude that the prosecution did not do so and that, therefore, each of the child abuse convictions must merge into one conviction for child abuse resulting in death.

         ¶3 As to the second double jeopardy question at issue, we conclude for two reasons that the division erred in determining that Friend's merged child abuse resulting in death conviction does not merge into his child abuse murder conviction. First, the plain language of the applicable statutes shows that "[w]hen a person knowingly causes the death of a child who has not yet attained twelve years of age and the person committing the offense is one in a position of trust with respect to the child," that person is to be convicted of child abuse murder and not child abuse resulting in death. § 18-6-401(7)(c). Second, under the clarified principles set forth in People v. Rock, 2017 CO 84, 402 P.3d 472, and Page v. People, 2017 CO 88, 402 P.3d 468, which were announced after the division's decision in this case, child abuse resulting in death is a lesser included offense of child abuse murder.

         ¶4 Having determined that the trial court erred in not merging the various counts in this case, the question remains whether these errors were plain. We conclude that they were and therefore we affirm in part and reverse in part the division's judgment.

         I. Facts and Procedural History

         ¶5 This case involves the death of four-year-old MB, the daughter of Friend's girlfriend. Late one evening, MB stopped breathing and was transported to the hospital in cardiac arrest. The next day, she was declared legally brain dead, and, pursuant to instructions from her biological father, she was removed from life support.

         ¶6 During an interview with law enforcement on the day that MB was transported to the hospital (and before she died), Friend admitted to striking and throwing MB several times in the prior few days. Specifically, he stated that two days earlier, he had thrown her against a door, and she hit her head on the doorknob. He further conceded that, on that same day, he had repeatedly "popped" MB in the back of the head with his open hand and that he had held her head underwater in the bathtub for at least five seconds. And he said that, during the previous day, he had hit MB on the back of the head with an open hand and with such force that it caused her to fly forward, hit her head against the bed mattress, and bounce backward off the bed and hit her head on the floor. Friend then picked her up and threw her on the bed, after which she vomited and within a few minutes became unresponsive. Friend did not seek medical attention for MB after any of these incidents.

         ¶7 Friend was ultimately charged with (1) first-degree murder-victim under twelve, position of trust; (2) child abuse resulting in death; (3) child abuse resulting in death- pattern of conduct; (4) two counts of child abuse causing serious bodily injury; and (5) child abuse causing serious bodily injury-pattern of conduct. In pleading each of these counts, the information generally tracked the language of the pertinent statutory provisions, but it did not indicate the specific facts supporting each count.

         ¶8 The case proceeded to trial, and, at trial, the prosecution treated Friend's abuse of MB as one pattern of conduct that ultimately resulted in her death, rather than as multiple patterns and discrete offenses. A jury convicted Friend on all counts, the trial court entered judgment on each count, and the court sentenced Friend to life in prison without the possibility of parole.

         ¶9 Friend appealed and raised two contentions that are pertinent here. First, he argued that his five child abuse convictions should merge into a single conviction because the child abuse counts represented alternative means of committing the same offense and the evidence did not support factually distinct offenses. Second, he argued that his remaining child abuse conviction should merge into his child abuse murder conviction because (1) the child abuse statute permitted the prosecution to file first-degree murder charges when the defendant's conduct resulted in the death of a child under the age of twelve and the defendant was in a position of trust with respect to the child and (2) the child abuse counts were included in the child abuse murder count.

         ¶10 In a unanimous, published decision, a division of the court of appeals agreed with Friend's first contention but disagreed with his second. People v. Friend, 2014 COA 123M, ¶ 45, __P.3d __. As to the first, the division applied our decision in Abiodun, 111 P.3d at 466-71, and concluded that the child abuse statute creates one offense that can be committed in alternative ways and that the prosecution had not proved separate offenses here. Friend, ¶¶ 61-72. As to the second, the division applied the test set forth in Blockburger v. United States, 284 U.S. 299, 304 (1932), and concluded that child abuse resulting in death is not a lesser included offense of child abuse murder. Friend, ¶¶ 78-83. Accordingly, the division declined to merge those convictions. Id. at ¶¶ 82-83.

         ¶11 Friend then petitioned and the People cross-petitioned for certiorari. We granted both petitions.

         II. Analysis

         ¶12 We begin by discussing whether the division below erred in determining that Friend's child abuse convictions must merge. After concluding that the division did not err in this regard, we proceed to consider whether the division erred in determining that Friend's child abuse resulting in death conviction does not merge into his conviction for child abuse murder. Based on the plain language of the applicable statutes and prevailing principles governing lesser included offenses, we conclude that the division erred in determining that these counts do not merge. We end by considering whether the trial court's errors in not merging Friend's various convictions were plain, and we conclude that they were, necessitating amendment of the mittimus.

         A. Child Abuse Convictions

         ¶13 The People contend that the division erred in concluding that each of Friend's child abuse convictions must merge into one conviction for child abuse resulting in death-pattern of conduct. We are not persuaded.

         ¶14 The Double Jeopardy Clauses of both the United States and Colorado Constitutions protect an accused from being twice placed in jeopardy for the same offense. U.S. Const. amend. V; Colo. Const. art. II, § 18; Boulies v. People, 770 P.2d 1274, 1277 (Colo. 1989). These Clauses protect not only against a second trial for the same offense but also, as pertinent here, against multiple punishments for the same offense. Woellhaf v. People, 105 P.3d 209, 214 (Colo. 2005). The Clauses do not, however, prevent the General Assembly from authorizing multiple punishments based on the same criminal conduct. Id. In this way, "the Double Jeopardy Clause simply embodies the constitutional principle of separation of powers by ensuring that courts do not exceed their own authority by imposing multiple punishments not authorized by the legislature." Id.

         ¶15 It is the legislature's province to establish and define offenses by prescribing the allowable unit of prosecution. Id. at 215. "The unit of prosecution is the manner in which a criminal statute permits a defendant's conduct to be divided ...


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