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
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").
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.
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
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
Facts and Procedural History
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.
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.
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.
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.
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.
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.
Friend then petitioned and the People cross-petitioned for
certiorari. We granted both petitions.
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.
Child Abuse Convictions
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.
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."
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 ...